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91 F.3d 1285
45 Fed. R. Evid. Serv. 369, 96 Cal. Daily Op.Serv. 5686,96 Daily Journal D.A.R. 9327UNITED STATES of America, Plaintiff-Appellee,v.Henry TSINNIJINNIE, Defendant-Appellant.
No. 95-10278.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted June 11, 1996.Decided Aug. 1, 1996.
Gerald A. Williams, Assistant Federal Public Defender, Phoenix, Arizona, for defendant-appellant.
Timothy C. Holtzen, Assistant United States Attorney, Phoenix, Arizona, for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding. D.C. No. CR-94-00295-EHC.
Before: GOODWIN, PREGERSON and KOZINSKI, Circuit Judges.
GOODWIN, Circuit Judge:
1
Tsinnijinnie appeals his conviction after a jury trial for sexual abuse of a minor. The district court permitted the government to impeach Tsinnijinnie by reading from his plea of guilty in tribal court to a reduced charge of endangering a minor based upon substantially the same conduct which he denied in the district court. The district court also admitted, over defense objections, evidence of Tsinnijinnie's prior physical abuse of the victim and testimony of an expert witness on child abuse. We affirm.
I. FACTS
2
Tsinnijinnie lived in a one room trailer with his wife Pauline, their sons, and Pauline's nine-year-old daughter. One night, Pauline noticed her daughter's clothes on the floor near the sofa where she slept and asked Tsinnijinnie when the daughter had changed her clothes. He said he didn't know. The next morning she questioned the girl, who told her that Tsinnijinnie had sexually assaulted her. The girl told her mother it had happened before. Pauline confronted Tsinnijinnie. She says that he admitted the conduct, admitted it had happened before, and promised it wouldn't happen again.
3
Two days later a social worker visited the trailer to work with one of the sons. Pauline told the social worker what had happened, and the social worker took the children to their maternal grandmother and Pauline to the police. The police then interviewed the girl and obtained a medical examination. The examination produced nothing incriminating.
4
Tsinnijinnie was arrested and interviewed by a criminal investigator, Tyrone Benally. Tsinnijinnie initially denied doing anything to the girl, then he later told Benally that he had touched her after she had directed sexual advances toward him. He also told Benally that the first time anything like that had happened was when his wife and youngest son came home from the hospital about September 1992. This is consistent with the girl's statement that the abuse started when she was in second grade. Tsinnijinnie later claimed he fabricated this statement because Benally told him that if he confessed he would be able to leave sooner.
5
Tsinnijinnie was charged by the Navajo Tribal police, and with the advice of counsel, entered a plea of guilty in the Tribal Court to two counts of endangering a minor. The plea agreement is memorialized in a document which bears both Tsinnijinnie's and his lawyer's signatures. He was afterward indicted on two counts under the Major Crimes Act: 1) one violation of 18 U.S.C. § 2241(c), aggravated sexual abuse of a minor, and 2) one violation of 18 U.S.C. § 1153, knowingly engaging or attempting to engage in a sexual act with a minor within Indian Country. This indictment was based on the same conduct for which Tsinnijinnie pled guilty in Tribal Court.1
6
Defendant was tried twice in district court. The first trial ended in a mistrial. In both trials, Tsinnijinnie took the stand and denied any sexual conduct with the alleged victim (called Jane Doe in the record). On cross examination he was asked, in both trials, by way of impeachment, if he had pled guilty to sexual misconduct with the same child when he was before the Tribal Court. The district court allowed the question to be asked and answered.
7
At the second trial, Tsinnijinnie again took the stand and swore that he had not sexually abused the girl, and that he had falsely told the interviewing officer he had touched her only to get to go home to be with his children. The government again, on cross examination, produced the plea agreement from the Tribal Court, signed by both Tsinnijinnie and his lawyer, and again asked the defendant about his guilty plea.
8
The second trial resulted in a mistrial on Count 1 and a guilty verdict on Count 2. The district court sentenced Tsinnijinnie to 134 months custody and 36 months supervised release.
II. IMPEACHMENT
9
Tsinnijinnie claims his plea should not be used for impeachment because it was not voluntary. However, there is no evidence that the plea was coerced. Even if we assume that the tribal court plea violated Federal Rule of Criminal Procedure 11, that does not mean that the plea cannot be used for impeachment purposes.
10
The Supreme Court has repeatedly allowed the use of statements that violate Miranda2 to impeach the credibility of the defendant who takes the stand and whose testimony is contrary to those statements. Oregon v. Hass, 420 U.S. 714, 723, 95 S.Ct. 1215, 1221, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643, 646, 28 L.Ed.2d 1 (1971).
11
In Harris, the defendant was not "Mirandized" but made no claim that his statements were coerced or involuntary. The court concluded that the right to testify in one's own defense "cannot be construed to include the right to commit perjury." Id. at 225, 91 S.Ct. at 646. In Hass, the defendant was read his rights, asked for a lawyer, and was told he could call one once he got to the station. The police officer proceeded, contrary to the Miranda rules, to ask about the crime. The defendant confessed and led the officer to the stolen merchandise. The Supreme Court expanded Harris and allowed the admission of inculpatory information even though it was obtained in violation of Miranda.
12
Harris and Hass have been applied in a search and seizure case. U.S. v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). Evidence obtained in violation of the 4th Amendment was used to impeach the defendant for statements he made on cross examination. Id. at 627-28, 100 S.Ct. at 1916-17. We have also permitted suppression hearing testimony to be used for impeachment, even though the 5th Amendment prevents its admission as substantive evidence of guilt. U.S. v. Beltran-Gutierrez, 19 F.3d 1287 (1994).
13
We hold that plea agreements, like statements made in violation of Miranda, may be received in evidence for impeachment purposes even if tribal courts do not follow Rule 11. The Constitutional protection which guards against coercion by the government should not be "perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Harris, 401 U.S. at 226, 91 S.Ct. at 646 (1975).
III. PRIOR BAD ACTS
14
The prosecutor introduced evidence that Tsinnijinnie had touched and rubbed the girl's private area "a lot of times" and that he had struck her on separate occasions with his hands, a belt, and a rake. The evidence was offered by the prosecutor to demonstrate opportunity and the context in which the charged crimes occurred, and to help explain why the victim did not report the abuse, or why she submitted to it quietly.
15
The Government argues these prior acts of Tsinnijinnie are admissible under Fed.R.Evid. 404(b). The district court agreed. Rule 404(b) allows evidence of prior bad acts "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Evidence should be excluded "only when it provides nothing but the defendant's criminal propensities." United States v. Hadley, 918 F.2d 848, 850 (9th Cir.1990).
16
The test for admitting evidence under 404(b) is whether: 1) it tends to prove a material fact; 2) the prior act is not too remote in time; 3) the evidence is sufficient to support a finding that the defendant committed the act; and 4) where knowledge and intent are at issue, the act is similar to that charged. U.S. v. Mayans, 17 F.3d 1174, 1181 (9th Cir.1994). The probative value of the evidence must also not be substantially outweighed by the danger of unfair prejudice. Fed.R.Evid. 403.
17
The evidence presented by the government of Tsinnijinnie's prior physical abuse proves a material fact. Under the first prong, the evidence of prior bad acts demonstrates how a child could be afraid enough to submit to such actions quietly, without telling her mother, who was nearby. See also United States v. Winters, 729 F.2d 602 (9th Cir.1984) (evidence of beatings and rapes of other victims was admissible under Rule 404(b) in a Mann Act prosecution to show modus operandi, motive and intent, and also to explain victims' failure to escape and call for help). Secondly, all of the evidence of prior physical abuse introduced by the government occurred within two years of when the charges were brought and was not remote in time. Thirdly, the evidence was sufficient to prove that Tsinnijinnie committed the prior physical abuse; testimony of the victim, alone, is sufficient and here the government presented the victim's testimony and the corroborating statements of a medical doctor. Finally, knowledge and intent are not at issue in this case.
18
Tsinnijinnie argues that the evidence of prior physical abuse should have been excluded under Rule 403 because its prejudicial effect substantially outweighs its probative value. The district court heard evidence on the Rule 403 arguments and permitted the testimony. The court gave limiting instructions to the jury after the testimony of the victim and at the end of the trial. The district court did not abuse its discretion in weighing the probative value of the evidence and allowing the evidence to come in.
IV. EXPERT TESTIMONY
19
Tsinnijinnie also objected to the introduction of the evidence of prior physical abuse because he alleges it was used improperly with the testimony of an expert to bolster the credibility of the victim. The witness was an expert on child sex abuse and testified about the timing of reports of sexual abuse by children. She did not testify about any specific actions in this case and did not examine the victim.
20
The district court's decision to admit this testimony is reviewed for abuse of discretion. U.S. v. Antone, 981 F.2d 1059, 1062 (9th Cir.1992). The expert did not bolster the credibility of the victim. The expert testimony was offered only to explain why children may be intimidated by physical abuse and deterred from complaining against the abuser, sometimes for long periods of time. The testimony was not offered to prove that the defendant had physically abused the child, but to explain how, if such conduct occurs, it may affect children. There was no abuse of discretion, and no error.
21
AFFIRMED.
1
Double jeopardy after a conviction in the Tribal Court does not bar federal criminal prosecution for essentially the same conduct, because the Navajo Tribal Court and the federal government are separate sovereigns. United States v. Wheeler, 435 U.S. 313, 98 S.Ct. 1079, 55 L.Ed.2d 303 (1978)
2
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prosecutor may not use statements stemming from custodial interrogation unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination)
|
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107 F.3d 632
1997-1 Trade Cases P 71,729
UNITED STATES OF AMERICA, Appellant,v.MERCY HEALTH SERVICES; Finley Tri-States Health Group,Inc., Appellees.State of Arkansas; State of Delaware; State of Florida;State of Illinois; State of Louisiana; State of Maryland;Commonwealth of Massachusetts; State of Minnesota; Stateof Missouri; State of New Hampshire; State of New Mexico;State of North Carolina; State of North Dakota; State ofOhio; State of Oregon; Commonwealth of Pennsylvania;State of Rhode Island; State of South Dakota; State ofTexas; State of Virginia; State of Washington; State ofWest Virginia; State of Wisconsin; State of New York;American Association of Health Plans; Missouri ManagedHealth Care Association; California Association of HMOs;Massachusetts Association of HMOs; Oklahoma Association ofHMOs; Deere & Company; John Deere Health Care, Inc.;International Union, United Automobile, Aerospace &Agricultural Implement Workers of America; Iowa ManagedCare Association; Illinois Association of HealthMaintenance Organizations; American Hospital Association;Association of Iowa Hospitals and Health Systems;Barnstead/Thermolyne; Dubuque Bank and Trust; FDL Foods,FDL Foods, Inc.; Flexsteel Industries, Flexsteel IndustriesIncorporated; Flynn Ready-Mix; Galena State Bank;Interstate Power Company; The Metrix Company; MoloCompanies; Myers-Cox and Portzen Construction, Amici Curiae.UNITED STATES OF AMERICA, Appellee,v.MERCY HEALTH SERVICES; Finley Tri-States Health Group,Inc., Appellants.State of Texas; State of Virginia; State of Washington;State of West Virginia; State of Wisconsin; State ofArkansas; State of Delaware; State of Florida; State ofIllinois; State of Louisiana; State of Maryland;Commonwealth of Massachusetts; State of Minnesota; Stateof Missouri; State of New Hampshire; State of New Mexico;State of North Carolina; State of North Dakota; State ofOhio; State of Oregon; Commonwealth of Pennsylvania;State of Rhode Island; State of South Dakota; State of NewYork; American Association of Health Plans; MissouriManaged Health Care Association; California Association ofHMOs; Massachusetts Association of HMOs; OklahomaAssociation of HMOs; Deere & Company; John Deere HealthCare, Inc.; International Union, United Automobile,Aerospace & Agricultural Implement Workers of America; IowaManaged Care Association; Illinois Association of HealthMaintenance Organizations; American Hospital Association;Association of Iowa Hospitals and Health Systems;Barnstead/Thermolyne; Dubuque Bank and Trust; FDL Foods,FDL Foods, Inc.; Flexsteel Industries, Flexsteel IndustriesIncorporated; Flynn Ready-Mix; Galena State Bank;Interstate Power Company; The Metrix Company; MoloCompanies; Myers-Cox and Portzen Construction, Amici Curiae.
Nos. 95-4253, 96-1051.
United States Court of Appeals,Eighth Circuit.
Submitted Oct. 24, 1996.Decided Feb. 26, 1997.
John P. Fonte, Dept. of Justice, Washington, DC, argued (Eugene D. Cohen, Mary Beth McGee, Richard S. Martin, Jesse M. Caplan, and Gregory S. Asciolla, on the brief), for Appellant.
David A. Ettinger, Detroit, MI, argued (Howard B. Iwrey, on the brief), for Appellees.
Before FAGG, ROSS, and MAGILL, Circuit Judges.
MAGILL, Circuit Judge.
1
The United States brought this action for injunctive relief under Section 7 of the Clayton Act and Section 1 of the Sherman Act to prevent Mercy Health Services (Mercy) and Finley Tri-States Health Group, Inc. (Finley) from merging. The district court1 denied the injunction, see United States v. Mercy Health Serv., 902 F.Supp. 968, 989 (N.D.Iowa 1995), and the United States appeals. Following the submission of this appeal, Finley formally announced its abandonment of the proposed merger. Contrary to the positions of the parties, we conclude that the appeal in this case is moot, and accordingly we vacate the district court's decision and dismiss this appeal.
I.
2
Mercy and Finley operate the only two acute-care hospitals in Dubuque, Iowa, a city of 86,403. While there are several small rural hospitals near Dubuque, the closest comparable hospitals to Mercy and Finley are regional hospitals located between 70 and 100 miles away in Waterloo, Iowa, Cedar Rapids, Iowa, Iowa City, Iowa, Davenport, Iowa, Madison, Wisconsin, and Freeport, Illinois (Regional hospitals).2
3
In 1993, Mercy and Finley began pursuing a partnership which would have merged the two entities into Dubuque Regional Hospital Systems. The United States investigated the proposed merger and filed a complaint on June 10, 1994, seeking to prevent the merger of Mercy and Finley under Section 7 of the Clayton Act, 15 U.S.C. § 18 (1994), and Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1 (1994).
4
Following a two-week trial, the district court held that the United States had failed to carry its burden of proving that the merger would have anticompetitive effects and denied the requested injunction. Key to the district court's conclusion was its finding that the United States had not proven that the relevant geographic market did not include the Regional hospitals, a necessary prerequisite to finding anticompetitive effects. See Mercy Health Serv., 902 F.Supp. at 987.3 The district court also held that if the United States had proven a more limited geographic market, then the court would have rejected Mercy's and Finley's argument that efficiencies stemming from the merger justified any anticompetitive effects. Id. at 989.
5
On appeal, the United States argues that the district court clearly erred in finding that the United States failed to prove a more limited geographic market. On cross-appeal, Mercy and Finley contend that the district court erred in rejecting their efficiency arguments.
6
On January 15, 1997, after this appeal had been submitted to this Court, Finley formally announced that it had abandoned its proposed merger with Mercy. In a press release, Kevin L. Rogols, the president and chief executive officer of Finley, announced Finley's
7
decision to withdraw from the Dubuque Regional Health System (DRHS), a planned partnership between Finley and Mercy Health Center, where both hospitals would have shared operating revenues.
8
Reprinted in Resp. of the United States of America to Letter from the Court Dated January 21, 1997 (Feb. 7, 1997). The release was circulated to the national press, and was reported in the Wall Street Journal. See Two Iowa Hospitals Drop Plan to Merge Operations, Wall St. J., Jan. 21, 1997, at A4. In response to this Court's request for a statement from counsel regarding the nonmerger decision, counsel for Mercy and Finley explained that:
9
Though [Mercy and Finley] have dissolved their partnership, the parties desire to have the opportunity to combine some or all of their operations in the future. They are unwilling to commit that they would not do so.... A decision that the case was moot would leave an issue unresolved that could be of great importance to the parties in the future.
10
Defs.' Position Statement Regarding Status of the Case at 2 (Feb. 7, 1997). The United States also asserted that the appeal was not rendered moot by Finley's decision to abandon the merger. See Resp. of the United States of America to Letter from the Court Dated January 21, 1997 at 1.
II.
11
This Court does not have jurisdiction to hear an appeal in a matter that no longer constitutes a live case or controversy. As the Supreme Court has stated:
12
The exercise of judicial power under Art. III of the Constitution depends on the existence of a case or controversy.... [A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.... The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.
13
Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 2334, 45 L.Ed.2d 272 (1975) (quotations and citations omitted). See also Keevan v. Smith, 100 F.3d 644, 647 (8th Cir.1996) ("A claim is properly dismissed as moot if it has lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law." (citations and quotations omitted)); Beck v. Missouri State H.S. Activities Ass'n, 18 F.3d 604, 605 (8th Cir.1994) (per curiam) ("During the course of litigation, the issues presented in a case may lose their life because of the passage of time or a change in circumstances. When this happens and a federal court can no longer grant effective relief, the case is moot. Federal courts lack power to decide moot cases." (citations omitted)). We may not consider an appeal, even if all of the parties involved wish us to, if the relief ultimately obtained would be meaningless and the resultant opinion no more than advisory.
14
Generally, the "voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot." United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). This is because
15
[a] controversy may remain to be settled in such circumstances, e.g., a dispute over the legality of the challenged practices. The defendant is free to return to his old ways. This, together with a public interest in having the legality of the practices settled, militates against a mootness conclusion.
16
Id. (citations and note omitted). See also City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982) ("It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power." (note omitted)). Thus, where "resumption of the challenged conduct depends solely on the defendants' capricious actions by which they are free to return to their old ways," Steele v. Van Buren Pub. Sch. Dist., 845 F.2d 1492, 1494 (8th Cir.1988) (quotations, citations, and alterations omitted), a case is not rendered moot by the defendant's abandonment of allegedly illegal conduct.
17
A case "may nevertheless be moot if the defendant can demonstrate that there is no reasonable expectation that the wrong will be repeated. The burden is a heavy one." W.T. Grant Co., 345 U.S. at 633, 73 S.Ct. at 897 (quotations and note omitted). See also Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49, 66, 108 S.Ct. 376, 386, 98 L.Ed.2d 306 (1987) ("The defendant must demonstrate that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (quotations and citations omitted) (emphasis in original)); Aladdin's Castle, 455 U.S. at 289 n. 10, 102 S.Ct. at 1074 n. 10 ("The test for mootness in cases such as this is a stringent one.... A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." (quotations and citations omitted)).
18
The parties suggest that this is a case where, despite Finley's decision to abandon the proposed merger, Mercy and Finley are free to "return to [their] old ways." W.T. Grant Co., 345 U.S. at 632, 73 S.Ct. at 897 (note omitted). We disagree. The genesis of this case is not any allegedly anticompetitive conduct that Mercy and Finley have actually engaged in, but the alleged threat that their proposed merger posed to competition. There is no illegal conduct for Mercy and Finley to return to, and Mercy and Finley have obviated the threat of illegal conduct by abandoning their proposed merger.
19
To be sure, Mercy and Finley could, at some time in the future, again decide to merge. But this hypothetical renewed attempt to merge would neither be prevented, nor allowed, by a decision of this Court at this time. If we were to reverse the district court's judgment and direct the imposition of an injunction, we would not be disabling Mercy and Finley from ever again seeking a merger. See Association For Retarded Citizens of North Dakota v. Sinner, 942 F.2d 1235, 1239 (8th Cir.1991) ("It is well settled that a district court retains authority under Rule 60(b)(5) to modify or terminate a continuing, permanent injunction if the injunction has become illegal or changed circumstances have caused it to operate unjustly."); see also King-Seeley Thermos Co. v. Aladdin Indus., Inc., 418 F.2d 31, 35 (2d Cir.1969) ("While we hold there is power to modify an injunction even in the absence of changed conditions, the power should be sparingly exercised."). Rather, we would be holding that the 1993 merger attempt, which has now been abandoned, would have been anticompetitive. Considering the significant changes experienced by the hospital industry in the recent past and the profound changes likely facing the industry in the near future, see Mercy Health Serv., 902 F.Supp. at 973-75 (discussing health care market trends), we believe that a merger, deemed anticompetitive today, could be considered procompetitive tomorrow.
20
Similarly, by affirming the district court's decision that, as of October 27, 1995, the United States had failed to prove that the now-abandoned merger would have had anticompetitive effects, we would not be granting a permanent license to Mercy and Finley to merge whenever they would like, regardless of the passage of time or the change of circumstances. It is beyond argument that a merger which would have been legal in the past may well be anticompetitive in the future; indeed, the district court's denial of injunctive relief was heavily informed by the volatile nature of the hospital industry. See id. Because a favorable decision by this Court would not give Mercy and Finley an eternal license to merge regardless of circumstances, the United States would have the opportunity to investigate the anticompetitive effects of a proposed merger in the future.4 The United States could then seek injunctive relief to halt this new merger attempt. A district court trying the case would then have to examine the factual circumstances extant at the time of this hypothetical future suit to determine if the new merger would have anticompetitive effects.
21
We decline to issue a judgment which has no present relevance on the mere chance that it could have some marginal utility in an uncertain future. While we understand that the parties in this case have expended significant resources in this litigation, and that each would like a favorable decision from this Court to influence possible future litigation, the parties' mere desire for a ruling does not revive a dead case into a live controversy. Now that the United States has been given all of the relief it has sought by its party opponents' decision to abandon the merger, the United States has no continuing stake in this litigation. In discarding its merger attempt today, Mercy and Finley cannot seek an advisory decision by this Court for their use tomorrow. We conclude, in all of the circumstances, that this case is moot.5
III.
22
Accordingly, we vacate the district court's decision and remand to the district court with directions to dismiss this case as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 106, 95 L.Ed. 36 (1950).
1
The Honorable Michael J. Melloy, United States Chief Judge for the Northern District of Iowa
2
In 1994 Mercy had approximately 320 staffed beds and an average daily census of 127, while Finley was estimated to have 124 staffed beds and an average daily census of 63. The Regional hospitals, which "generally offer the same or greater range of services as provided by Mercy and Finley," United States v. Mercy Health Serv., 902 F.Supp. 968, 972 (N.D.Iowa 1995), had between 143 and 868 staffed beds and an average daily census of between 70 and 677. By contrast, the rural hospitals, which "mainly provide primary care services and do not provide the breadth of services Mercy and Finley offer," id. at 971, had between 25 and 99 licensed beds and an average daily census of between 3 and 12.4
3
In FTC v. Freeman Hosp., 69 F.3d 260 (8th Cir.1995), this Court described the relevant geographic market for antitrust purposes:
The determination of the relevant market is a "necessary predicate" to a finding of a Clayton Act violation. Without a well-defined relevant market, an examination of a transaction's competitive effects is without context or meaning....
A relevant market consists of two separate components: a product market and a geographic market.... A geographic market is that geographic area to which consumers can practically turn for alternative sources of the product and in which the antitrust defendants face competition. In order to meet its burden, the FTC is required to present evidence addressing the critical question of where consumers of acute care inpatient hospital services could practicably turn for alternative sources of the product should the Hospitals' merger be consummated and [the] hospital prices become anti-competitive.
Id. at 268 (quotations and citations omitted).
4
Indeed, if the merging entities met certain statutory and regulatory guidelines, they would be required to file with the United States a statement of their intent to merge. See 16 C.F.R. §§ 801-803 (1996) (regulations implementing the Hart-Scott-Rodino Antitrust Improvements Act of 1976). Even if premerger notification was not mandated, the hospitals could request a review of the proposed merger by the United States. See 28 C.F.R. § 50.6 (1996) (Antitrust Division business review procedure)
5
We note that the court in R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102 (2d Cir.1989), came to a contrary conclusion, and held that the abandonment of a proposed merger did not moot a challenge to the merger. Unlike the circumstances in R.C. Bigelow, we do not believe that here the "abandonment of challenged conduct seems timed to head off an adverse determination on the merits." Id. at 106. Indeed, it is apparent that Mercy and Finley would prefer this Court to render a decision on the merits, and that the timing of the decision to abandon the merger during the pendency of the appeal was no more than coincidence
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15‐1290‐cr
United States v. Mathison
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 COURTʹS 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 ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 25th day of April, two thousand eighteen.
PRESENT: AMALYA L. KEARSE,
GUIDO CALABRESI,
DENNY CHIN,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
UNITED STATES OF AMERICA,
Appellee,
v. 15‐1290‐cr
ANTHONY MATHISON,
Defendant‐Appellant.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x
FOR APPELLEE: SARITHA KOMATIREDDY, Assistant United
States Attorney (Emily Berger, Alicyn L.
Cooley, Melody Wells, Assistant United States
Attorneys, on the brief), for Richard P.
Donoghue, United States Attorney for the
Eastern District of New York, Brooklyn, New
York.
FOR DEFENDANT‐APPELLANT: JAMES HEALY, (Steven G. Brill, on the brief),
Sullivan & Brill, LLP, and Anthony Mathison,
pro se, New York, New York.
Appeal from the United States District Court for the Eastern District of
New York (Cogan, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the amended judgment of the district court is
AFFIRMED.
Defendant‐appellant Anthony Mathison appeals an amended judgment
entered April 22, 2015, convicting him on two counts of Felon in Possession of a
Firearm, pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He was sentenced principally
to 204 monthsʹ imprisonment. We assume the partiesʹ familiarity with the underlying
facts, procedural history, and issues on appeal.
On November 9, 2012, a grand jury returned the operative superseding
indictment charging Mathison with three counts of Felon in Possession of a Firearm,
pursuant to 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 3551, et seq. Count One pertained to
Mathisonʹs sale of a Ruger 9mm pistol to a cooperating witness on April 6, 2010. Count
Two pertained to a police search of Mathison on November 18, 2010, during which
police found a Kel‐Tec 9mm handgun. Count Three pertained to an incident in which
2
police found two handguns ‐‐ a Taurus .45 caliber handgun and a Taurus 9mm gun ‐‐
one in a backpack thrown from a window and the other alongside it outside a building
on October 9, 2011.
On December 17, 2012, Mathison moved to sever the three counts. The
court granted the motion in part, and trial on Count One began on May 6, 2013. Prior to
jury instructions, Mathison pleaded guilty to all three counts. Mathison, however,
subsequently moved to withdraw his guilty plea; the district court granted the motion
and ordered a new trial. As for Count Two, Mathison moved to suppress the evidence
in April 2014, arguing that it was the fruit of an illegal stop and frisk. After a hearing,
the district court granted the motion and the government dropped this count. As for
Count Three, the district court held a trial in May 2014, and the jury returned a guilty
verdict, finding that Mathison possessed the Taurus .45 but not the Taurus 9mm. In
June 2014, the district court held a second trial on Count One, and the jury returned a
guilty verdict on this count.
On December 19, 2014, before sentencing, the government disclosed for
the first time that there was a match for Troy Watsonʹs DNA on the Taurus 9mm gun.
Watson had been arrested with Mathison in October 2011. At trial, however, his DNA
was only identified as being from ʺDonor B.ʺ
In advance of sentencing, Mathison objected to several findings in the
Presentence Report (ʺPSRʺ), including a finding that Mathison shot Corey Marshal.
3
Accordingly, the court held a Fatico hearing on February 27, 2015. At sentencing on
April 17, 2015, the district court set forth its findings of fact, concluding that Mathison
shot Marshal and that Mathison possessed three guns: the Ruger 9mm (Count One), the
Taurus .45 (Count Three), and the Kel‐Tec 9mm (dismissed Count Two). The district
court sentenced Mathison to 102 monthsʹ imprisonment on each of Counts One and
Three, to be served consecutively, for a total of 204 months. Judgment was entered on
April 22, 2015, and this appeal followed.
On appeal, Mathison argues: (1) his rights under Brady v. Maryland, 373
U.S. 83 (1963), were violated by the governmentʹs failure before trial to disclose that
Watsonʹs DNA was on the Taurus 9mm; (2) the district court abused its discretion in
allowing certain evidence at trial; and (3) the district court erred in its sentencing
calculation.
I. Brady Claim
Mathison argues that the governmentʹs failure to turn over DNA evidence
linking Watson to one of the guns in Count Three violates Brady. We disagree.
When considering a Brady claim, ʺwe examine the record de novo to
determine whether the evidence in question is material as a matter of law.ʺ United
States v. Madori, 419 F.3d 159, 169 (2d Cir. 2005). Under Brady, a defendantʹs due process
rights are violated if the prosecution fails to provide ʺevidence favorable to [the]
accused.ʺ Strickler v. Greene, 527 U.S. 263, 280 (1999). To establish a Brady violation, the
4
defendant must demonstrate that: (1) the evidence at issue is favorable to the accused,
either because it is exculpatory or because it is impeaching; (2) the evidence was
suppressed by the government, either willfully or inadvertently; and (3) the defendant
was prejudiced. Id. at 281‐82.
The government concedes the first two prongs of the Brady test, and we
agree that they are met. We conclude, however, that Mathison failed to demonstrate
that he was prejudiced. Mathison was convicted only of possessing the gun with his
DNA on it, that is, the Taurus .45, and thus the evidence of Watsonʹs DNA on the other
gun ‐‐ as to which he was acquitted ‐‐ would not have changed this result. Moreover,
the jury was aware that there was DNA of other individuals on the guns, and still
convicted Mathison on the Taurus .45. Accordingly, we find no Brady violation.
II. Evidentiary Claims
Mathison raises several evidentiary claims regarding witness testimony.
This Court reviews a district courtʹs evidentiary rulings for abuse of discretion. United
States v. Mercado, 573 F.3d 138, 141 (2d Cir. 2009). ʺTo find such abuse, we must
conclude that the trial judgeʹs evidentiary rulings were arbitrary and irrational.ʺ United
States v. Paulino, 445 F.3d 211, 217 (2d Cir. 2006) (internal quotation marks omitted).
Even if a reviewing court finds error, a new trial is not required if the error was
harmless. See Mercado, 573 F.3d at 141. Upon review of the record, we find no abuse of
discretion in the district courtʹs evidentiary rulings.
5
III. Sentencing Claims
With respect to sentencing, Mathison argues that the district court erred
when: (1) it calculated his base offense level under United States Sentencing Guideline
§ 2K2.1(a)(4), finding that his prior conviction in New York for Robbery in the Second
Degree was a crime of violence; and (2) it applied sentencing enhancements under
U.S.S.G. § 2K2.1(b)(6)(B), based on its finding that Mathison shot Marshal, and
§ 2K2.1(b)(1)(A), based on its finding that Mathison possessed three guns, including the
Kel‐Tec that was the subject of dismissed Count Two.
We review sentencing decisions for procedural and substantive
reasonableness. See United States v. Cavera, 550 F.3d 180, 187 (2d Cir. 2008) (en banc);
United States v. Verkhoglyad, 516 F.3d 122, 127 (2d Cir. 2008). We apply a ʺdeferential
abuse‐of‐discretionʺ standard to both procedural and substantive review. Cavera, 550
F.3d at 189 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). We find procedural
error when a district court fails to calculate the Guidelines range, makes a mistake in its
Guidelines calculation, treats the Guidelines as mandatory, fails to consider the
§ 3553(a) factors, or rests its sentence on a ʺclearly erroneousʺ finding of fact. Id. at 190
(citing United States v. Crosby, 397 F.3d 103, 112 (2d Cir. 2005); Gall, 552 U.S. at 51). Facts
relevant to sentencing must be found by a preponderance of the evidence. United States
v. Salazar, 489 F.3d 555, 557 (2d Cir. 2007).
6
As to the first issue, this Court recently held in another case that New
York second degree robbery is indeed a crime of violence as a matter of law. See United
States v. Smith, 884 F.3d 437, 440‐41 (2d Cir. 2018). We thus conclude that the district
court correctly calculated Mathisonʹs base offense level.
As to the second issue, upon review of the record, we find that the district
court did not err in applying the sentencing enhancements. With respect to the
§ 2K2.1(b)(6)(B) enhancement, there was sufficient evidence in the record to support the
finding that Mathison shot Marshal ‐‐ the gun that Mathison was convicted of
possessing in Count Three was the gun with which Marshal was shot, and it was found
in Mathisonʹs possession a few days after the shooting. With respect to the
§ 2K2.1(b)(1)(A) enhancement, the district court did not abuse its discretion in
considering the suppressed Kel‐Tec 9mm handgun at sentencing as it took into account
the proper Fourth Amendment factors. See United States v. Tejada, 956 F.2d 1256, 1261‐
63 (2d Cir. 1992) (the district court may consider illegally seized evidence, but must
balance Fourth Amendment considerations). Accordingly, we reject the claim of
sentencing error.
. . .
We have considered Mathisonʹs remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the amended judgment of the district court.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
7
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91 F.3d 133
8 NDLR P 256
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.Mary K. SCHLICK, Plaintiff-Appellant,v.Donna E. SHALALA, Secretary of Health and Human Services,Defendant-Appellee,andWilliam RAUB, Dr., Acting Director of the NationalInstitutes of Health, Defendant.
No. 95-2695.
United States Court of Appeals, Fourth Circuit.
Argued July 8, 1996.Decided Aug. 1, 1996.
1
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, District Judge. (CA-91-231-PJM)
2
ARGUED: David H. Shapiro, SWICK & SHAPIRO, P.C., Washington, D.C., for Appellant. Larry David Adams, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF: Diane Bodner, SWICK & SHAPIRO, P.C., Washington, D.C., for Appellant. Lynne A. Battaglia, United States Attorney, Greenbelt, Maryland, for Appellee.
3
Before WILKINSON, Chief Judge, HAMILTON, Circuit Judge, and JOSEPH F. ANDERSON, JR., United States District Judge for the District of South Carolina, sitting by designation.
OPINION
PER CURIAM
4
Appellant Mary K. Schlick brought suit alleging that the Department of Health and Human Services failed to make reasonable accommodation for her disability and constructively discharged her in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 790 et seq. On appeal, she argues that the district court erred in entering summary judgment against her. We hold, however, that appellant was not a qualified individual entitled to reasonable accommodation under the Act and was not constructively discharged. Accordingly, we affirm the judgment of the district court.
I.
5
In 1974, Schlick suffered a head injury and was diagnosed as having Non-psychotic Organic Brain Syndrome with Brain Trauma. Her condition substantially limits her ability to work, in particular her ability to handle complex work assignments, deadlines, and work requiring frequent synthesis of new material.
6
Schlick was hired by the National Cancer Institute (NCI) in 1979. She was rapidly promoted, obtaining in 1984 a GS-11 position as a legislative analyst. Dr. Mary Knipmeyer became her supervisor in 1983 and gave her favorable performance reviews prior to 1987. In April 1986, Schlick went on a six-month work detail to the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK). She also received a favorable review for her performance there.
7
In 1987, however, Schlick's performance declined dramatically. In the beginning of 1987, Schlick went on a second detail to the Community Clinical Oncology Program (CCOP). In evaluating her work at CCOP, her supervisor there expressed strong disappointment in her performance, stating that "[Schlick] is not considered responsible for carrying out critical tasks," and "requires almost a one-to-one supervision. This should not be necessary at her grade level."
8
Following her return from CCOP, Schlick's July 1987 progress review documented further problems with her performance. In August 1987, Dr. Knipmeyer asked Schlick to prepare a legislative history of the Cancer Center Program. Substantial defects in her work product forced Dr. Knipmeyer to spend numerous hours revising and correcting the report. In November 1987, Dr. Knipmeyer provided Schlick with a letter outlining the problems with the legislative history project and requested that Schlick obtain a medical evaluation in order to allow NCI to assess what positions or accommodations might be appropriate for her. In December 1987, Schlick went on leave and never returned to work.
9
Schlick brought suit in 1990, alleging that the Department of Health and Human Services had failed to accommodate her disability and constructively discharged her in violation of the Rehabilitation Act of 1973. The district court awarded summary judgment to appellee.
II.
10
On appeal, Schlick contends that the district court erred in granting summary judgment, arguing that she was a qualified employee entitled to accommodation and was constructively discharged in violation of the Rehabilitation Act. We disagree. No reasonable interpretation of the record will support the conclusion either that she was qualified for her position or that she was constructively discharged.
A.
11
Under applicable regulations, the Rehabilitation Act requires federal agencies to "make reasonable accommodation to the known physical or mental limitations of an applicant or employee who is a qualified individual with handicaps...." 29 C.F.R. § 1614.203(c)(1). Among other requirements, a "qualified individual with handicaps" must be able "with or without reasonable accommodation, [to] perform the essential functions of the position in question." 29 C.F.R. § 1614.203(a)(6). Schlick asserts that her favorable performance reviews prior to 1987 demonstrate that she was a "qualified individual." We disagree. While these evaluations may suggest that Schlick was capable of performing certain elements of her job, her performance in 1987 and medical evidence regarding her condition demonstrate that she could not fully meet the legitimate requirements of her position.
12
A primary example is Schlick's performance on the legislative history assignment for Dr. Knipmeyer. There is no question that the project fell within Schlick's job description, but her work product was plainly inadequate, both incomplete and riddled with errors. For example, Schlick confused Congressional report language with statutory language, included incomplete or misquoted report language, and failed to locate certain readily available reference materials. Dr. Knipmeyer had to rewrite ninety percent of the analytical portion of Schlick's report. Similar deficiencies in her performance were evident throughout 1987, including her work at CCOP.
13
The disabling impact of Schlick's condition is confirmed by evidence in her medical record. One doctor who examined her noted that although trained as a paralegal, she was unable to function as one when placed under even mild pressure. Two evaluations of her condition concluded that an appropriate position for Schlick would be significantly different from the one she held, requiring close supervision, few time constraints or deadlines, modest requirements for synthesizing new material, and assignment of minimal tasks at one time. Dr. Troshinsky, her treating psychiatrist, concluded that "she was given tasks that she could not successfully perform because of the cognitive deficits from the head injury."
14
Appellant essentially does not dispute the fact that her work assignments were appropriate for her position or the fact that her performance in 1987 was inadequate. Instead, Schlick primarily argues that the problems she experienced commenced only after Dr. Knipmeyer, in April 1987, requested that Schlick observe regular hours instead of coming into work early, as she had done previously.
15
This does not explain her poor performance at CCOP, however, since that detail occurred before she was asked to observe regular working hours. More importantly, coming to work early would not address appellant's inability to perform under stress and meet deadlines or her need for intensive supervision. Undisputed evidence thus compels us to conclude that Schlick was simply unable to meet the legitimate requirements of her job.
B.
16
Schlick also claims that she was constructively discharged, alleging that Dr. Knipmeyer tried to get rid of her first by assigning her to work details elsewhere, and then by restructuring her work so that she was "bound to fail." This claim, however, is unsupported by the record.
17
In this circuit, the standard for constructive discharge requires a plaintiff to establish both intolerable working conditions and a deliberate effort by the employer to force the employee to quit. Martin v. Cavalier Hotel Corp., 48 F.3d 1343, 1353-54 (4th Cir.1995); Johnson v. Shalala, 991 F.2d 126, 131 (4th Cir.1993). In arguing that she was subjected to intolerable working conditions, Schlick points to (1) work assignments given to her in 1987; (2) criticism of her work in 1987; (3) Dr. Knipmeyer's request that she observe normal work hours; and (4) Dr. Knipmeyer's request for a medical evaluation of her condition. As noted, however, appellant does not contend that any of the work assigned was inappropriate for her position or that her performance in 1987 was adequate. By definition, asking an employee to perform legitimate assignments cannot be intolerable. Similarly, legitimate criticism is a part of any job. Meanwhile, the requests that Schlick observe regular working hours and provide a medical evaluation were part of a series of events wherein NCI attempted to assist her; Dr. Knipmeyer became aware that Schlick's disability severely affected her ability to perform and consequently requested a medical evaluation in order to aid Schlick in finding an appropriate position.
18
Nor do appropriate work assignments and legitimate criticism evidence "a deliberate effort by the employer to force the employee to quit." Johnson, 991 F.2d at 131. Schlick claims that Dr. Knipmeyer pressured her to go on the two work details, but, even if true, this could not have been part of a plot to get rid of her--Dr. Knipmeyer was unaware of any significant problems with Schlick's performance until after she began the second detail. Similarly, Dr. Knipmeyer's requests that she work regular hours and obtain a medical evaluation were made before Dr. Knipmeyer knew the full extent of appellant's disability.
19
The record clearly shows NCI's overall behavior as a bona fide effort to assess the nature of Schlick's disability and to determine which positions or accommodations might be appropriate to allow her to continue working. In fact, NCI continued to search for a place for Schlick even after she had left work and it was not clear whether she would return.
III.
20
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
|
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64 F.3d 659
NOTICE: Fourth Circuit Local Rule 36(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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.William R. BOWLES, Defendant-Appellant.
No. 94-5880.
United States Court of Appeals, Fourth Circuit.
Argued July 13, 1995.Decided Aug. 18, 1995.
ARGUED: Richard Andrew Davis, Charlottesville, VA, for Appellant. Kenneth Martin Sorenson, Assistant United States Attorney, Roanoke, VA, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, J. Alexander Boone, Third Year Law Intern, Roanoke, VA, for Appellee.
Before WILKINSON and LUTTIG, Circuit Judges, and G. ROSS ANDERSON, JR., United States District Judge for the District of South Carolina, sitting by designation.
OPINION
PER CURIAM:
1
Bowles challenges the sentencing court's decision to impose a longer sentence than the maximum specified by the Guidelines. We affirm.
2
Bowles was convicted of possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g). After his conviction, but before sentencing, a United States Magistrate Judge granted Bowles' motion for a one-week release from custody. Bowles did not return as ordered. He was arrested in North Carolina and later pled guilty to a charge of failure to appear in violation of 18 U.S.C. Sec. 3146(a)(1). At sentencing, the trial court found that the sentencing guidelines did not adequately reflect Bowles' criminal history and contempt for the law. He departed upward and sentenced Bowles to sixty months in prison.
3
Bowles' criminal history spans ten years. It includes convictions for assault on a police officer, obstruction of justice, and two previous failures to appear. When arrested for the firearms possession charges, Bowles was on probation. The probation arose from convictions for grand larceny and possession of a controlled substance. His lengthy criminal record resulted in seventeen criminal history points. Thirteen points establish a criminal history category of VI, the highest category. Thus, Bowles' criminal history placed him four points above the maximum category.
4
Bowles' conviction for possession of a firearm by a convicted felon carried an offense level of fourteen. Bowles received a two-point enhancement for obstruction of justice based on his failure to appear. Thus, Bowles' total offense level was sixteen.
5
At sentencing, the judge grouped the firearms conviction with the failure to appear conviction. The resulting guideline range was forty six to fifty-seven months. The judge reviewed Bowles' lengthy and serious criminal history, his contempt for the judicial system, and the seriousness of his recent convictions. Next, the judge determined that the Guideline range did not adequately punish Bowles. He then sentenced Bowles to the fifty-seven-month upper limit and added a three-month upward departure for Bowles' lengthy criminal history and contempt for the justice system.
6
The sentencing Court properly departed from the Guidelines. An upward departure must be reasonable. See United States v. Summers, 893 F.2d 63, 66 (4th Cir.1990). We review an upward departure with a four-part test for reasonableness. United States v. Palinkas, 938 F.2d 456, 461 (4th Cir.1991); United States v. Hummer, 916 F.2d 186, 192 (4th Cir.1990), cert. denied, 499 U.S. 970 (1991). First, we make a de novo determination of whether the Guidelines adequately consider the specific reasons for the departure. Second, we review for clear error the factual findings supporting the departure. Third, we review, for abuse of discretion, the sentencing judge's determination that the departure factors are important enough to justify an upward departure. Finally, we review the reasonableness of the departure for abuse of discretion.
7
Bowles contests only the first element of the test--whether the Guidelines adequately consider the judge's stated reasons for departure. Bowles argues that the sentencing judge departed upward solely to punish him for failing to appear and that the Guidelines already increased his sentence for this offense.
8
The Guidelines provide a two-point enhancement for obstruction of justice, and the sentencing judge stated lack of punishment as a reason for the departure. However, the judge did not increase the sentence solely for Bowles' failure to appear. The judge adopted the presentence report and relied on its findings. The judge also relied on Bowles' extensive criminal record and repeated disdain for the judicial system for his findings that the Guidelines did not provide adequate punishment.
9
The Guidelines did not adequately reflect Bowles' extensive criminal history. Bowles amassed seventeen criminal history points, placing him four points above the amount required for the highest criminal category. In addition, Bowles' prior offenses include assault on police officers and two other failures to appear. Bowles has also had many charges against him dismissed. Furthermore, many of Bowles' earlier arrests and convictions concern firearms violations and a failure to respect authority--the same offenses that led to his present sentence. The sentencing judge commented that Bowles' conduct and demeanor clearly reflected contempt for the law and an orderly society. The judge correctly held that the Guidelines do not adequately reflect Bowles' history, demeanor, contempt for the law, and the similarity of his previous convictions to the offense for which he was sentenced.
10
The Guidelines did not adequately reflect Bowles' criminal history and disdain for the judicial system. The record supports the sentencing judges' findings. Bowles' record and disdain for the justice system justify an upward departure. Considering these circumstances, the three-month upward departure was reasonable.
AFFIRMED
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946 F.2d 887
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Sharon Rene BUHLS, a/k/a Sharon Rene Harvey, Defendant-Appellant.
No. 90-5355.
United States Court of Appeals, Fourth Circuit.
Submitted Jan. 10, 1991.Decided Oct. 10, 1991.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca B. Smith, District Judge. (CR-90-1-N)
Robert Dean Eisen, Norfolk, Va., for appellant.
Henry E. Hudson, United States Attorney, Harvey Lee Bryant, III, Assistant United States Attorney, Norfolk, Va., for appellee.
E.D.Va.
AFFIRMED.
Before SPROUSE and NIEMEYER, Circuit Judges, and CHAPMAN, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Sharon Rene Buhls appeals the district court's application of the sentencing guidelines pursuant to 18 U.S.C. § 3742(a)(2). We affirm.
2
Buhls pleaded guilty to one count of a ten-count indictment charging her with devising and implementing a fraudulent scheme by use of the mail and false social security numbers. Buhls was the regional vice president with A.L. Williams & Associates, Inc., an insurance services company. The indictment alleged that she caused approximately 89 fraudulent insurance applications to be submitted to the Massachusetts Indemnity and Life Insurance Co. (MILICO), resulting in the loss of approximately $78,000.00. The count to which she pleaded guilty set out this general information about the scheme and charged her with causing to be placed in the mail a check in the amount of $11,849.31 from MILICO to herself as part of the scheme, in violation of 18 U.S.C. §§ 1341 and 2.
3
On appeal, Buhls contends that the district court used an improper amount of loss in determining her base offense level pursuant to U.S.S.G. § 2F1.1, that the court erred in not finding that she was a minimal or minor participant in the scheme pursuant to § 3B1.2 and in finding that she was a leader or organizer pursuant to § 3B1.1. Buhls also contends that the district court abused its discretion in finding against her on these issues.
4
We find that the district court properly held Buhls accountable for the $78,000.00 loss as alleged in the indictment. See United States v. Ruelas-Armenta, 684 F.Supp. 1048 (C.D.Cal.1988). Buhls argued to the district court that the amount of loss should include only the amount of loss to MILICO from the check in the count to which she pleaded guilty, less some credit for restitution already made. However, the count to which she pleaded guilty also included, by reference, the allegations that she devised and implemented the scheme which resulted in the total loss of approximately $78,000.00. Accordingly, the district court properly considered the entire amount of loss caused by the fraudulent scheme in determining Buhl's base offense level. See United States v. Ruelas-Armenta, supra; U.S.S.G. § 1B1.3(a)(2).
5
Additionally, we are persuaded that the district court's determination that Buhls devised and implemented the scheme, that she was an organizer or leader, and that she was not a minimal or minor participant are not clearly erroneous. See generally United States v. Gordon, 895 F.2d 932 (4th Cir.), cert. denied, 111 S.Ct. 131 (1990).
6
In view of the above, the judgment of the district court is affirmed. We dispense with oral argument because the facts and legal contentions are adequately presented in the material before the Court and argument would not aid the decisional process.
7
AFFIRMED.
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937 F.2d 602Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.Louise W. CAWTHORNE, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary of Health and Human Services,Defendant-Appellee.
No. 90-1154.
United States Court of Appeals, Fourth Circuit.
Argued April 8, 1991.Decided July 3, 1991.As Amended Aug. 13, 1991.
Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (CA-89-691-R)
Charles H. Cuthbert, Jr., Cuthbert Law Offices, Petersburg, Va., for appellant.
Robert S. Drum, Assistant Regional Counsel, Office of the General Counsel, Department of Health and Human Services, Philadelphia, Pa. (argued), for appellee; Eileen Bradley, Chief Counsel, Region III, William Reeser, Supervisory Assistant Regional Counsel, Office of the General Counsel, Department of Health and Human Services, Philadelphia, Pa., Henry E. Hudson, United States Attorney, Debra J. Prillaman, Assistant United States Attorney, Richmond, Va., on brief.
E.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, BUTZNER, Senior Circuit Judge, and JAMES H. MICHAEL, Jr., United States District Judge for the Western District of Virginia, sitting by designation.
OPINION
PER CURIAM:
1
Louise W. Cawthorne appeals the judgment of the district court affirming the administrative denial of her claims for disability insurance benefits and Supplemental Security Income. We affirm.
2
Cawthorne is a 52-year old woman who worked most recently as a retail clerk. She filed separate applications for disability insurance benefits and for Supplemental Security Income in March 1988, alleging that arthritis in both legs and in her left arm prevented her from performing any substantial gainful activity. A physician with the Virginia state disability agency reviewed medical evidence submitted by Cawthorne's treating physicians and concluded that Cawthorne retained the ability to perform substantial gainful work. The Secretary of Health and Human Services therefore denied Cawthorne's claim and denied her claim again upon reconsideration.
3
On appeal the administrative law judge found that Cawthorne's testimony conflicted with the medical evidence presented. He concluded that Cawthorne was not entitled to either disability insurance, under 42 U.S.C. Secs. 416(i), 423, or Supplemental Security Income, under 42 U.S.C. Secs. 1381a, 1382c, because she retained the ability to perform her past relevant work. The Appeals Council denied Cawthorne's petition for discretionary review, and the administrative law judge's decision became the final decision of the Secretary. 42 U.S.C. Sec. 405(g) (1988).
4
Cawthorne then filed suit in district court to challenge the Secretary's decision, in accordance with 42 U.S.C. Secs. 405(g), 1383(c)(3). The district court referred the case to a magistrate judge, pursuant to 28 U.S.C. Sec. 636(b)(1)(B), and the magistrate judge concluded that substantial evidence supported the Secretary's decision to deny benefits. After filing objections to the magistrate judge's proposed opinion, Cawthorne moved to remand the case for consideration of new and material evidence. The district court denied Cawthorne's motion to remand, overruled her objections, and granted the Secretary's motion for summary judgment. This appeal followed.
5
Cawthorne first argues that the administrative law judge applied an incorrect legal standard by requiring that medical evidence fully corroborate her testimony. We cannot accept this argument.
6
The administrative law judge considered and discussed Cawthorne's testimony, found that it conflicted with all the medical evidence in the record, and resolved the conflict in favor of the medical evidence. Clinical notes and medical reports indicated that Cawthorne has osteoarthritis in both knees but that she retains a full range of motion in both knees and in all major joints. The administrative law judge found "[t]he claimant's subjective complaints, including frequent knee pain, were neither fully credible nor fully corroborated by the objective medical evidence." This dual finding is neither factually nor legally erroneous.
7
Cawthorne next argues that the administrative law judge failed to make a credibility finding with respect to the testimony of Cawthorne's husband. While the administrative law judge did not state his credibility finding with respect to the testimony of Cawthorne's husband, he did state that he had given full consideration to all of the available evidence. Since Cawthorne's husband essentially reiterated Cawthorne's testimony, testimony which the administrative law judge did not find fully credible, the district court properly found that the administrative law judge's failure to state a finding about the husband's testimony was harmless error.
8
Finally, Cawthorne argues that the district court abused its discretion by denying her motion to remand for consideration of new and material evidence, pursuant to 42 U.S.C. Sec. 405(g). Cawthorne filed a motion to remand the case for consideration of new and material evidence, a letter and a functional assessment by Cawthorne's treating physician. After considering Cawthorne's arguments and the evidence itself, the district court found that even if the evidence was new and material, Cawthorne failed to show good cause for her delay in presenting the evidence. The district court concluded that since the administrative law judge had the treating physician's report and office notes when he made his decision, the additional evidence would not have altered the final decision. The district court did not abuse its discretion in denying Cawthorne's motion to remand.
9
AFFIRMED.
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346 So.2d 959 (1977)
J. Stanley FRAZER, etc.
v.
ALABAMA STATE POLICEMEN'S ASSOCIATION, INC., etc.
SC 2378.
Supreme Court of Alabama.
June 3, 1977.
William J. Baxley, Atty. Gen. and Jerry L. Weidler, Asst. Atty. Gen., for appellant.
Edward L. Hardin, Jr., Birmingham, for appellee.
BEATTY, Justice.
This is an appeal to review an order of the Circuit Court of Montgomery County granting a preliminary injunction. By that order the defendant, as Director of the Alabama State Personnel Department, was enjoined from filling a vacancy in the position of Director of the Division of Marine Police in the Alabama Department of Conservation and Natural Resources, by means other than by promotion. We reverse and remand.
The suit was brought by the Alabama State Policemen's Association, Inc., a nonprofit *960 domestic corporation. Membership in this Association is composed of law enforcement officers in the State of Alabama, including those of the Department of Public Safety, the Alcoholic Beverage Control Board, and the Department of Conservation. Also, some of the Association members are State Merit System employees who hold permanent status as Conservation Enforcement Officers III and IV. The Association has as one of its purposes: "To advocate and strive for uniform application of the Civil Service Merit System for appointment and promotion."
On March 26, 1976 the plaintiff-Association filed a complaint for "A declaration and construction of Title 55, § 311," Alabama Code (Recomp.1958), alleging that it and its members would suffer irreparable harm if the vacancy, described above, were filled by the defendant in the manner described by Merit System Announcement No. 76-55, that is, by a combination of "open-competitive" and "promotional" examination. Plaintiff maintains that its members who hold classifications as Conservation Enforcement Officers are eligible for promotion, and that the existing vacancy is required to be filled by promotion "if practicable." The Association also contends that this method of filling vacancies is required by the established State of Alabama policy for filling senior administrative positions. Plaintiff asserts that it being "practicable" to fill this vacancy by promotion, an "open-competitive" examination register would cause plaintiff and its members to suffer irreparable harm. The irreparable harm, plaintiff argues, would occur because "plaintiff would not have achieved its purpose to secure uniform application of the Civil Service Merit System and in that morale in the law enforcement agencies of the State of Alabama, whose employees are members of plaintiff would be harmed in that incentive to strive for exceptional performance in order to gain promotion would be diluted."
Plaintiff made further allegations attacking the announced qualification for taking the examination as unreasonable, erroneous, subjective, and unequal.
The defendant responded to the two-count complaint by filing a motion to dismiss alleging the plaintiff's failure to state a claim upon which relief could be granted and the lack of a justiciable controversy. Following denial of that motion, defendant filed an answer reiterating as defenses that the complaint failed to state a claim which could be afforded relief and denying that plaintiff was entitled to the relief sought in its complaint.
On April 15, 1976, a hearing was held on a motion for a preliminary injunction, after which the trial court granted the Association's motion for preliminary injunction.
The threshold question presented in this case is whether the incorporated Association has standing to enforce the individual rights of its members. Except for the statement contained in the plaintiff's brief that "representatives of the Association, acting as bargaining agents for the members of the Association, met with the appellant. . .," it does not appear from the record that this suit was grounded on behalf of any person, real or statutory, other than the Association itself. The plaintiff's reference in brief in support of its vicarious right as a bargaining agent for the members does not support plaintiff's conclusion. That reference is to the personnel director's testimony concerning a discussion he had with several Association representatives:
. . . . .
I pointed out to them, among other things, that we had people apply for this examination in good faith on the basis of the open competitive announcement, and I thought they had some rights in the matter as well as the members of the State Policeman's Association, or employees of the Department.
. . . . .
This language cannot qualify as proof of a bargaining agency, or of a recognition of any such authority. The Association, accordingly, must rely upon its own being for *961 the standing to maintain this action. In addition, the defendant contends that the Association does not possess the requisite standing in its own capacity.
Rule 17, ARCP, speaks to this point:
(a) . . . Every action shall be prosecuted in the name of the real party in interest. . . .
The "real party in interest" is the party ". . . who possesses the substantive right being asserted under the applicable law. . . ." Wright & Miller, Federal Practice and Procedure: Civil § 1541 at 635.
Reference to Federal Rule 17(a), which is identical to Alabama's Rule 17(a), is helpful in clarifying the present issue. Decisions under the Federal Rule 17(a) have denied to incorporated associations the standing to assert in court the personal rights of its members, absent statutory authority (which is not asserted by the plaintiff here). Statutory authority was asserted in Ala. Independent Service Station Ass'n, Inc. v. Shell Petroleum Corp., 28 F.Supp. 386 (N.D.Ala. 1939) and the court, in dismissing the association corporation as a plaintiff, stated:
The association corporation named shows no legal right to receive compensation for the damages of its members, nor does it have such a property right as an injunction . . . will protect. Its charter power to act for the benefit of its members to prevent violations of laws does not give it capacity to maintain a suit of this kind. . . . The capacity of the association corporation. . . to sue generally is not questioned, but its capacity to enforce the separate property rights of its individual members seems unfounded in any authority or law.
The absence of standing was also used in Farmers Co-op Company v. Socony-Vacuum Oil Company, 133 F.2d 101 (8th Cir. 1942), to deny to a cooperative oil company the right to maintain an action on behalf of its members to recover damages for violations of the Clayton Act; the same result attended the attempt by a non-profit milk producers corporation to maintain an anti-trust action for treble damages when there was no showing that the claim asserted was that of the organization and not that of its members. South Carolina Council of Milk Producers, Inc. v. Newton, 241 F.Supp. 259 (D.C.S.C.1965).
Moreover, while it is true, as the defendant states, that both the Alabama Constitution, Article 12, § 240 and Tit. 10, § 70(2) of the Alabama Code allow corporations the right to sue "in all Courts and like cases as a natural person," these provisions themselves do not grant to corporations, such as the plaintiff, the standing to use the courts to enforce the separate property rights of its individual members.
Plaintiff is correct, that under Tit. 7, § 166, Alabama Code, "no declarations shall prejudice the rights of persons not parties. . ." But this section contemplates situations in which
. . . one or more may not be included when there are parties who represent the merits of the conflict. . . . [Trammel v. Glens Falls Indemnity Co., 259 Ala. 430, 66 So.2d 537 (1953)]. (Emphasis Supplied.)
Since the Association has failed to establish by pleading or proof that it has a substantive right to assert in the selection process utilized by the defendant, and that no joinder or substitution by any real party in interest has accrued as authorized by Rule 17(a), we conclude that plaintiff has no standing by itself to bring this action. For aught appearing, those of its members presently employed by the Department of Conservation who are eligible for promotion would have standing to contest the personnel director's action. This follows from Tit. 55, § 311, Alabama Code:
Within the discretion of the director, vacancies in positions shall be filled, insofar as practicable, by promotion from among regular employees holding positions in the classified service . . .
Judicial knowledge, which is authorized in State v. Friedkin, 244 Ala. 494, 14 So.2d 363 (1943), is taken of Rule VIII, § 2 of the Rules of the State Personnel Board:
The Director shall hold competitive promotional examinations which shall be *962 open only to persons in the classified service who have held for six months or more positions which are determined by the Director to be within the lines of promotion to the class of positions for which the examination is held.
The defendant also contends that because there was no justiciable controversy, the trial court had no power to grant injunctive relief. Since we find that the Association has no standing to maintain this action, we need not reach this issue.
For the failure of standing the case is reversed and remanded with directions to the Circuit Court of Montgomery County to enter an order dissolving the preliminary injunction. Because of the necessity for this action, it is unnecessary to address the other questions presented for review.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C. J., and MADDOX, FAULKNER and SHORES, JJ., concur.
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101 F.3d 687
NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.United States of America, Appellee,v.Steven LONG, Steven Crea, Dominick Truscello, Defendants-Appellants.
No. 95-1717.
United States Court of Appeals, Second Circuit.
June 25, 1996.
George L,. Santangelo, Santangelo, Santangelo & Cohen, NY, NY, for Appellants.
Bridget M. Rohde, Assistant United States Attorney, Eastern District of New York, for Appellee.
Before OAKES, ALTIMARI and WALKER, Circuit Judges.
1
This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York (Johnson, Judge ), and was submitted.
2
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the appeal is hereby DISMISSED.
3
Defendant-appellant Steven Long appeals from a judgment of the district court convicting him, on his guilty plea, of conspiring to defraud the United State in violation of 18 U.S.C. § 371. Long was sentenced to a term of eleven months in prison, which he is currently serving. Long argues on appeal that the district court erroneously increased the offense level by two levels under U.S.S.G. § 2T1.9(b)(2) (1991 version) for engaging in conduct intended to encourage persons other than co-conspirators to impede or impair the Internal Revenue Service in the assessment and collection of revenue.
4
Between September 1988 and December 1991, several persons connected to organized crime families victimized DeLuxe Homes of Pennsylvania, Inc. ("DeLuxe"), the developer for the construction of three low-income housing projects, by extorting money from job sites. DeLuxe was told that it would have to deal with persons connected with organized crime before starting work. DeLuxe was told that it would have no problems with the workers unions in exchange for a certain payment per unit of construction. DeLuxe agreed to pay.
5
Long pleaded guilty to one count of a superseding indictment alleging that Long allowed DeLuxe to pay persons connected to organized crime families unassociated with the construction project to conceal payments to them in checks. To this end, defendant Long's company, Long Industries, Inc., entered inflated contracts with DeLuxe and generated inflated invoices as a vehicle for obtaining the extortion proceeds. DeLuxe paid the invoices by issuing inflated checks to Long Industries, which laundered the checks and ultimately disturbed the cash proceeds among the members of the organized crime families involved,. Long's company did not reflect the payment of 1099 income from DeLuxe to the recipients of the cash in its federal income tax returns, and the crime family members did not reflect its receipt.
6
Long's contention that the sentencing court improperly enhanced his offense level pursuant to U.S.S.G. § 2T1.9(b)(2) is unavailing. In Paragraph 4 of his plea agreement, Long explicitly agreed to waive his right to appeal if the sentence he received was within or below the eight-to-fourteen-month guideline range set forth in the agreement. Because a knowing and voluntary waiver of the right to appeal a sentence within a agreed guideline range is enforceable, Long is precluded from making this argument, as the district court sentenced him to eleven months in prison. See United States v. Salcido-Contreras, 990 F.2d 51, 53 (2d Cir.) (per curiam), cert. denied, 113 S.Ct. 3060 (1993).
7
For the reasons set forth above, the appeal is hereby DISMISSED.
|
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526 F.2d 64
11 Fair Empl.Prac.Cas. 917,10 Empl. Prac. Dec. P 10,526Warner B. JACKSON, Plaintiff-Appellant,v.Michael S. DUKAKIS et al., Defendants-Appellees.
No. 75--1251.
United States Court of Appeals,First Circuit.
Argued Oct. 8, 1975.Decided Dec. 1, 1975.
Gershon M. Ratner, Boston, Mass., with whom Robert L. James, Roxbury, was on brief, for appellant.
J. Joseph Maloney, with whom Daniel D. Gallagher and Maloney, Gallagher & Kirk, Boston, Mass., were on brief for Massachusetts Turnpike Authority, appellee.
William A. Schroeder, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., was on brief, for Commonwealth defendants-appellees.
Herbert D. Friedman, Boston, Mass., with whom Morris M. Goldings and Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for Board of Trustees of State Colleges, appellee.
John W. Arata, Atty., Washington, D.C., with whom Neil L. Lynch, Chief Legal Counsel, Boston, Mass., was on brief, for Massachusetts Port Authority, appellee.
Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
1
This appeal arises from a class action brought by appellant and two other plaintiffs against the governor of Massachusetts and the heads of sixteen state agencies. Jackson v. Sargent, 394 F.Supp. 162 (1975). The three plaintiffs below sought injunctive and declaratory relief to redress injuries claimed to be suffered by themselves and others similarly situated as a result of alleged racially discriminatory hiring practices of the defendants' state agencies in the city of Boston. The discrimination claim is based essentially on certain statistics proffered by plaintiffs which if true indicate an underrepresentation of minority persons employed in the defendants' state agencies in Boston as compared to Boston's minority population as a whole. Id. at 170--72. Plaintiffs claim this underrepresentation establishes a prima facie case of racial discrimination in contravention of the Equal Protection Clause and 42 U.S.C. §§ 1981 and 1983 (1970). In addition plaintiffs claim that the defendants historically had, and have continued to engage in discriminatory hiring and employment practices which serve to perpetuate the effects of past racial discrimination. The district court dismissed plaintiff-appellant Jackson from the action for lack of standing.1 We affirm.
2
Appellant Jackson is a black resident of Boston. He is an honorably discharged veteran of the United States Navy who has completed high school and has more than one year of college credit. Jackson has been employed in the past as a job developer, job recruiter, youth counselor and office administrator. He claims to be qualified for similar positions in the various defendants' agencies. However, Jackson has never applied for employment with any of these agencies. He states he has not applied because he does not want to subject himself to the racial discrimination allegedly practiced by these agencies. Appellant Jackson avers he would seek a job with the defendants' agencies if their discriminatory practices were enjoined. The district court held that since Jackson 'failed to perform even (the) miniscule act' of applying for a job with one or more of the defendants' agencies, he was unable to establish any causal link between his injuries and the employment discrimination allegedly practiced by the defendants. Jackson v. Sargent, supra at 169.
3
A plaintiff to have standing to sue must have 'a personal stake in the outcome of the controversy.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). His allegations must indicate, first, 'that the challenged action has caused him injury in fact, economic or otherwise' and, second, that 'the interest sought to be protected . . . is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). See H. Hart & H. Wechsler, The Federal Courts and the Federal System, 152-56 (2d ed. 1973). Our inquiry is focused on the first of these requirements since, as the district court correctly held and appellees concede, appellant Jackson satisfies the second. A review of the record indicates that appellant fails to satisfy the first requirement.
4
Jackson claims to have suffered economic and psychological injury due to the defendants' actions. But in light of appellant's failure even to apply for a job with defendants' agencies this claim cannot avail. Although the categories of judicially cognizable injury have been broadened to include noneconomic injuries, see Association of Data Processing Service Organizations, Inc. v. Camp, supra at 154, 90 S.Ct. 827; Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954), the Supreme Court has recently 'stressed that the broadening of categories 'is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." Schlesinger v. Reservists to Stop the War,418 U.S. 208, 218--19, 94 S.Ct. 2925, 2931, 41 L.Ed.2d 706 (1974).
5
Appellant seeks to rescue his claim by pointing to the Court's approval of the statement that 'an identifiable trifle is enough for standing to fight out a question of principle.' United States v. SCRAP, 412 U.S. 669, 689, n. 14, 93 S.Ct. 2405, 2417, 37 L.Ed.2d 254 (1973). However, by failing to apply to any of the agencies appellant made it impossible for the district court to establish except by conjecture any connection between the claimed injuries and the allegedly discriminatory acts. Even where the injury or threat of injury is 'trifling,' it nevertheless 'must be both 'real and immediate,' not 'conjectural' or 'hypothetical." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).
6
Further, appellant claims he has standing to challenge defendants' recruitment practices which deter him from applying. But framing the challenge in this way does not appreciably aid appellant in showing that he has been directly injured in fact. While the Supreme Court has afforded individuals who had not yet been identifiably injured by the government practice standing to contest the constitutionality of governmentally sanctioned or imposed organizational membership requirements or employment practices, see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), it has done so because of a concern about the possible 'deterrent, or 'chilling,' effect of governmental' actions. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972). See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 167--68, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).2 Appellant has alleged no effects from defendants' practices which involve the chilling of any fundamental rights.
7
In a further effort to salvage standing, appellant contends that the 'gist' of his claim is that the defendants' allegedly discriminatory practices prevent him from completing the application process. However, this claim cannot avail. In Moose Lodge No. 107 v. Irvis, supra, where the black guest of a lodge member was denied service, the Supreme Court granted the guest standing to contest the policies toward members' guests, 407 U.S. at 166, 92 S.Ct. 1965, but denied him standing to challenge the Lodge's allegedly discriminatory membership practices because he 'was not injured by (the) membership policy since he never sought to become a member.' Id. at 167, 92 S.Ct. at 1968. Appellant Jackson has never sought to apply to the defendants' agencies. While it is possible that he would be subjected to discriminatory action should he apply, until he does so his potential injury is no more immediate or real than that of any other concerned citizen. A 'plaintiff still must allege (that there is) a distinct and palpable injury to himself . . .,' Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), 'not that he can imagine circumstances in which he could be affected by the agency's action.' United States v. SCRAP, supra 412 U.S. at 689, 93 S.Ct. 2405, 2416.
8
Appellant further contends that he should be granted standing despite a failure to apply to defendants' agencies, because class action suits in the sphere of employment discrimination inevitably involve persons who have not applied for jobs. But careful scrutiny reveals there is little substance to this claim.3 While courts have permitted a named plaintiff to represent persons who 'would have applied for employment in the offices of the defendants except for their belief that equal employment opportunity was denied . . .,' Nowlin v. Pruitt, 62 F.R.D. 121, 122 (D.C., 1974), generally the named plaintiffs representing the class are already applicants or employees, see, e.g., Young v. Edgcomb Steel Co., 363 F.Supp. 961, 967 (M.D.N.C.1973), modified, 499 F.2d 97 (4th Cir. 1974); Arey v. Providence Hospital, 55 F.R.D. 62, 64--65 (D.C., 1972); Penn v. Stumpf, 308 F.Supp. 1238, 1239 & n. 1 (N.D.Cal.1970); see also Castro v. Beecher, 459 F.2d 725, 732 n. 8 (1st Cir. 1972).4 Further, the fact that a court may grant affirmative relief in a class action which extends to persons who have not previously applied, see, e.g., Boston Chapter, NAACP v. Beecher, 371 F.Supp. 507, 519 (D.Mass.), aff'd, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975) does not imply, as appellant contends, that such non-applicants are thereby entitled to standing. 'The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action'.' Warth v. Seldin, supra at 2205, 95 S.Ct. at 2205.
9
Affirmed.
1
The court also dismissed defendants representing seven of the agencies from the suit and limited the number of agencies which the other plaintiffs would be entitled to sue. Jackson v. Sargent, supra at 173
2
And even under '(t)his exception to the usual rules governing standing,' there must be 'more than 'allegations of a subjective chill.' There must be a 'claim of specific present objective harm or a threat of a specific future harm." Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (citations) omitted)
3
Appellant also claims that the district court's decision denying him standing amounted to an improper conclusive presumption that a person could not be injured by employment discrimination unless he had applied for a job. We are unable to agree with this contention. The irrebuttable presumption doctrine has never been applied to judicial decisions. See Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); United States Dep't of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Further, the district court specifically acknowledged that it was 'willing to recognize psychological injury . . . as a cognizable injury upon which a plaintiff may base his standing to sue.' Jackson v. Sargent, supra, 394 F.Supp. at 168. But the court correctly denied appellant standing for want of a showing of any causal connection between his alleged injuries and the defendants' actions. Id. at 169. See discussion supra, and O'Shea v. Littleton, supra, 414 U.S. at 494, 94 S.Ct. 669
4
Although there are class actions in which non-applicants have been among the named plaintiffs, the circumstances of class certification were such that these cases do not appear to contravene the general pattern. See Carter v. Gallagher, 452 F.2d 315, 317 (8th Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) ('No challenge to class representation' where class included both applicants and non-applicants to fire department); Arnold v. Ballard, 390 F.Supp. 723, 725 (D.C., 1975) (three of eight named plaintiffs were applicants to police department; 'grievances (of other five did) not relate to Police . . . entrance requirements')
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526 F.2d 64
11 Fair Empl.Prac.Cas. 917,10 Empl. Prac. Dec. P 10,526Warner B. JACKSON, Plaintiff-Appellant,v.Michael S. DUKAKIS et al., Defendants-Appellees.
No. 75--1251.
United States Court of Appeals,First Circuit.
Argued Oct. 8, 1975.Decided Dec. 1, 1975.
Gershon M. Ratner, Boston, Mass., with whom Robert L. James, Roxbury, was on brief, for appellant.
J. Joseph Maloney, with whom Daniel D. Gallagher and Maloney, Gallagher & Kirk, Boston, Mass., were on brief for Massachusetts Turnpike Authority, appellee.
William A. Schroeder, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., was on brief, for Commonwealth defendants-appellees.
Herbert D. Friedman, Boston, Mass., with whom Morris M. Goldings and Mahoney, Hawkes & Goldings, Boston, Mass., were on brief, for Board of Trustees of State Colleges, appellee.
John W. Arata, Atty., Washington, D.C., with whom Neil L. Lynch, Chief Legal Counsel, Boston, Mass., was on brief, for Massachusetts Port Authority, appellee.
Before COFFIN, Chief Judge, and McENTEE and CAMPBELL, Circuit Judges.
McENTEE, Circuit Judge.
1
This appeal arises from a class action brought by appellant and two other plaintiffs against the governor of Massachusetts and the heads of sixteen state agencies. Jackson v. Sargent, 394 F.Supp. 162 (1975). The three plaintiffs below sought injunctive and declaratory relief to redress injuries claimed to be suffered by themselves and others similarly situated as a result of alleged racially discriminatory hiring practices of the defendants' state agencies in the city of Boston. The discrimination claim is based essentially on certain statistics proffered by plaintiffs which if true indicate an underrepresentation of minority persons employed in the defendants' state agencies in Boston as compared to Boston's minority population as a whole. Id. at 170--72. Plaintiffs claim this underrepresentation establishes a prima facie case of racial discrimination in contravention of the Equal Protection Clause and 42 U.S.C. §§ 1981 and 1983 (1970). In addition plaintiffs claim that the defendants historically had, and have continued to engage in discriminatory hiring and employment practices which serve to perpetuate the effects of past racial discrimination. The district court dismissed plaintiff-appellant Jackson from the action for lack of standing.1 We affirm.
2
Appellant Jackson is a black resident of Boston. He is an honorably discharged veteran of the United States Navy who has completed high school and has more than one year of college credit. Jackson has been employed in the past as a job developer, job recruiter, youth counselor and office administrator. He claims to be qualified for similar positions in the various defendants' agencies. However, Jackson has never applied for employment with any of these agencies. He states he has not applied because he does not want to subject himself to the racial discrimination allegedly practiced by these agencies. Appellant Jackson avers he would seek a job with the defendants' agencies if their discriminatory practices were enjoined. The district court held that since Jackson 'failed to perform even (the) miniscule act' of applying for a job with one or more of the defendants' agencies, he was unable to establish any causal link between his injuries and the employment discrimination allegedly practiced by the defendants. Jackson v. Sargent, supra at 169.
3
A plaintiff to have standing to sue must have 'a personal stake in the outcome of the controversy.' Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962). His allegations must indicate, first, 'that the challenged action has caused him injury in fact, economic or otherwise' and, second, that 'the interest sought to be protected . . . is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.' Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 829-830, 25 L.Ed.2d 184 (1970). See H. Hart & H. Wechsler, The Federal Courts and the Federal System, 152-56 (2d ed. 1973). Our inquiry is focused on the first of these requirements since, as the district court correctly held and appellees concede, appellant Jackson satisfies the second. A review of the record indicates that appellant fails to satisfy the first requirement.
4
Jackson claims to have suffered economic and psychological injury due to the defendants' actions. But in light of appellant's failure even to apply for a job with defendants' agencies this claim cannot avail. Although the categories of judicially cognizable injury have been broadened to include noneconomic injuries, see Association of Data Processing Service Organizations, Inc. v. Camp, supra at 154, 90 S.Ct. 827; Sierra Club v. Morton, 405 U.S. 727, 738, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); cf. Brown v. Board of Education, 347 U.S. 483, 494 (1954), the Supreme Court has recently 'stressed that the broadening of categories 'is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury." Schlesinger v. Reservists to Stop the War,418 U.S. 208, 218--19, 94 S.Ct. 2925, 2931, 41 L.Ed.2d 706 (1974).
5
Appellant seeks to rescue his claim by pointing to the Court's approval of the statement that 'an identifiable trifle is enough for standing to fight out a question of principle.' United States v. SCRAP, 412 U.S. 669, 689, n. 14, 93 S.Ct. 2405, 2417, 37 L.Ed.2d 254 (1973). However, by failing to apply to any of the agencies appellant made it impossible for the district court to establish except by conjecture any connection between the claimed injuries and the allegedly discriminatory acts. Even where the injury or threat of injury is 'trifling,' it nevertheless 'must be both 'real and immediate,' not 'conjectural' or 'hypothetical." O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974).
6
Further, appellant claims he has standing to challenge defendants' recruitment practices which deter him from applying. But framing the challenge in this way does not appreciably aid appellant in showing that he has been directly injured in fact. While the Supreme Court has afforded individuals who had not yet been identifiably injured by the government practice standing to contest the constitutionality of governmentally sanctioned or imposed organizational membership requirements or employment practices, see Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971), cf. Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), it has done so because of a concern about the possible 'deterrent, or 'chilling,' effect of governmental' actions. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972). See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 167--68, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972).2 Appellant has alleged no effects from defendants' practices which involve the chilling of any fundamental rights.
7
In a further effort to salvage standing, appellant contends that the 'gist' of his claim is that the defendants' allegedly discriminatory practices prevent him from completing the application process. However, this claim cannot avail. In Moose Lodge No. 107 v. Irvis, supra, where the black guest of a lodge member was denied service, the Supreme Court granted the guest standing to contest the policies toward members' guests, 407 U.S. at 166, 92 S.Ct. 1965, but denied him standing to challenge the Lodge's allegedly discriminatory membership practices because he 'was not injured by (the) membership policy since he never sought to become a member.' Id. at 167, 92 S.Ct. at 1968. Appellant Jackson has never sought to apply to the defendants' agencies. While it is possible that he would be subjected to discriminatory action should he apply, until he does so his potential injury is no more immediate or real than that of any other concerned citizen. A 'plaintiff still must allege (that there is) a distinct and palpable injury to himself . . .,' Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975), 'not that he can imagine circumstances in which he could be affected by the agency's action.' United States v. SCRAP, supra 412 U.S. at 689, 93 S.Ct. 2405, 2416.
8
Appellant further contends that he should be granted standing despite a failure to apply to defendants' agencies, because class action suits in the sphere of employment discrimination inevitably involve persons who have not applied for jobs. But careful scrutiny reveals there is little substance to this claim.3 While courts have permitted a named plaintiff to represent persons who 'would have applied for employment in the offices of the defendants except for their belief that equal employment opportunity was denied . . .,' Nowlin v. Pruitt, 62 F.R.D. 121, 122 (D.C., 1974), generally the named plaintiffs representing the class are already applicants or employees, see, e.g., Young v. Edgcomb Steel Co., 363 F.Supp. 961, 967 (M.D.N.C.1973), modified, 499 F.2d 97 (4th Cir. 1974); Arey v. Providence Hospital, 55 F.R.D. 62, 64--65 (D.C., 1972); Penn v. Stumpf, 308 F.Supp. 1238, 1239 & n. 1 (N.D.Cal.1970); see also Castro v. Beecher, 459 F.2d 725, 732 n. 8 (1st Cir. 1972).4 Further, the fact that a court may grant affirmative relief in a class action which extends to persons who have not previously applied, see, e.g., Boston Chapter, NAACP v. Beecher, 371 F.Supp. 507, 519 (D.Mass.), aff'd, 504 F.2d 1017 (1st Cir. 1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975) does not imply, as appellant contends, that such non-applicants are thereby entitled to standing. 'The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action'.' Warth v. Seldin, supra at 2205, 95 S.Ct. at 2205.
9
Affirmed.
1
The court also dismissed defendants representing seven of the agencies from the suit and limited the number of agencies which the other plaintiffs would be entitled to sue. Jackson v. Sargent, supra at 173
2
And even under '(t)his exception to the usual rules governing standing,' there must be 'more than 'allegations of a subjective chill.' There must be a 'claim of specific present objective harm or a threat of a specific future harm." Bigelow v. Virginia, 421 U.S. 809, 95 S.Ct. 2222, 44 L.Ed.2d 600 (1975) (citations) omitted)
3
Appellant also claims that the district court's decision denying him standing amounted to an improper conclusive presumption that a person could not be injured by employment discrimination unless he had applied for a job. We are unable to agree with this contention. The irrebuttable presumption doctrine has never been applied to judicial decisions. See Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1974); United States Dep't of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (1973); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); Stanley v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971). Further, the district court specifically acknowledged that it was 'willing to recognize psychological injury . . . as a cognizable injury upon which a plaintiff may base his standing to sue.' Jackson v. Sargent, supra, 394 F.Supp. at 168. But the court correctly denied appellant standing for want of a showing of any causal connection between his alleged injuries and the defendants' actions. Id. at 169. See discussion supra, and O'Shea v. Littleton, supra, 414 U.S. at 494, 94 S.Ct. 669
4
Although there are class actions in which non-applicants have been among the named plaintiffs, the circumstances of class certification were such that these cases do not appear to contravene the general pattern. See Carter v. Gallagher, 452 F.2d 315, 317 (8th Cir. 1971), cert. denied, 406 U.S. 950, 92 S.Ct. 2045, 32 L.Ed.2d 338 (1972) ('No challenge to class representation' where class included both applicants and non-applicants to fire department); Arnold v. Ballard, 390 F.Supp. 723, 725 (D.C., 1975) (three of eight named plaintiffs were applicants to police department; 'grievances (of other five did) not relate to Police . . . entrance requirements')
|
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913 F.2d 1399
59 USLW 2197
Linda B. DORFMONT, Plaintiff-Appellant,v.James P. BROWN, Director of Department of Defense, DefenseLegal Services Agency, Directorate for Industrial SecurityClearance Review; Frank C. Carlucci, Secretary of Defense;United States of America, Defendants-Appellees.
No. 88-6580.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 29, 1990.Decided Sept. 10, 1990.
Dale M. Fiola, Anaheim, Cal., for plaintiff-appellant.
Tomson T. Ong, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges.
KOZINSKI, Circuit Judge:
1
Linda Dorfmont lost her security clearance. We consider whether the federal courts can do anything about it.
Facts
2
Linda Dorfmont worked on United States government defense contracts for Hughes Aircraft, a job for which the Department of Defense had granted her a security clearance.
3
In 1984, while working on one of those defense contracts, Dorfmont found herself in need of a computer programmer. Unable to secure a programmer within the company, she decided to go outside for help; far outside. On several occasions during the summer of 1984, she sent company data to one Lubemir Peichev. A Bulgarian national, Peichev was serving a life sentence in federal prison for his part in the attempted hijacking of an airliner. For all that, he was said to be a top-notch programmer.
4
The Directorate for Industrial Security Clearance Review (DISCR), the Defense Department agency charged with reviewing the security clearances of industrial employees working on defense contracts, discovered Dorfmont's arrangement with Peichev; it was not amused. In July 1985, it sent Dorfmont a Statement of Reasons explaining that it could not make a preliminary finding that granting Dorfmont continued access to classified material was "clearly consistent with the national interest." The Directorate also advised Dorfmont it was recommending that her case be submitted to a hearing examiner for a determination whether to revoke her security clearance. The stated reason for this recommendation was "conduct of a reckless nature indicating poor judgment, unreliability or untrustworthiness," to wit the turning over of documents to Peichev.
5
Dorfmont submitted a response to the Statement of Reasons, and requested a formal hearing. The hearing took place before a hearing examiner on four days in September 1986. After receiving evidence and testimony from both Dorfmont and the Department of Defense, the examiner concluded that it was not clearly consistent with the national interest to continue Dorfmont's security clearance.
6
Dorfmont appealed to the Department of Defense Appeal Board. In September 1987, the appeal board filed its determination, finding error and remanding to the hearing examiner for reconsideration. Pursuant to the appeal board remand order, the examiner considered additional evidence and once again concluded that it was not clearly consistent with the national interest to continue Dorfmont's security clearance. Dorfmont appealed once more and, in July 1988, the appeal board affirmed the determination of the hearing examiner.
7
A month later, Dorfmont filed the present action seeking an injunction against the revocation of her security clearance. Dorfmont alleged that the decision of the hearing examiner and appeals board violated her rights to procedural and substantive due process. The district court dismissed the complaint, finding that it did not have jurisdiction to review the lifting of Dorfmont's security clearance.
8
Dorfmont appeals. The existence of subject matter jurisdiction is a question of law we review de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989).
Discussion
9
I. Judicial Review of Security Clearance Decisions
10
A. In Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), the Supreme Court held that the Merit Systems Protection Board (MSPB) has no authority to review an executive decision to revoke a security clearance. The logic of that decision precludes judicial review as well.
11
The Court explained in Egan that the normally strong presumption in favor of appellate review of agency decisionmaking "runs aground when it encounters concerns of national security." Id. at 527, 108 S.Ct. at 823. In this "sensitive and inherently discretionary" area of decisionmaking, the "authority to protect [security] information falls on the President as head of the Executive Branch and as Commander in Chief." Id.
12
Because of the extreme sensitivity of security matters, there is a strong presumption against granting a security clearance. Whenever any doubt is raised about an individual's judgment or loyalty, it is deemed best to err on the side of the government's compelling interest in security by denying or revoking clearance. The general administrative standard is that a clearance may be granted or retained only if "clearly consistent with the interests of the national security." Id. at 528, 108 S.Ct. at 824 (internal quotations omitted). In light of this presumption, "no one has a 'right' to a security clearance." Id.
13
Security clearance decisions are inherently uncertain; they rest on the ability to predict an individual's future behavior. In Egan, the Court recognized the necessity for expertise in making such decisions. Id. at 529-30, 108 S.Ct. at 824-30. In the key passage for our purposes, the Court concluded:
14
Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence. Nor can such a body determine what constitutes an acceptable margin of error in assessing the potential risk.
15
Id. at 529, 108 S.Ct. at 825. This reasoning applies no less to the federal courts than to the MSPB. When it comes to security matters, a federal court is "an outside nonexpert body." We have no more business reviewing the merits of a decision to grant or revoke a security clearance than does the MSPB. Thus, the reasoning behind Egan precludes this type of judicial review.
16
In its subsequent decision in Webster v. Doe, 486 U.S. 592, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988), the Court confirmed that federal courts lack jurisdiction to review the merits of security clearance decisions. The Court considered the scope of judicial review available for decisions by the Director of Central Intelligence to terminate a CIA employee for security reasons. Webster held that such decisions were committed to the discretion of the director by law, thereby precluding judicial review pursuant to the Administrative Procedure Act. Id. at 601, 108 S.Ct. at 2052.
17
The Department of Defense revoked Dorfmont's security clearance. The department derives its authority directly from the President. See Exec. Order No. 10865, 25 Fed.Reg. 1583 (1960), as amended by Exec Order No. 10909, 26 Fed.Reg. 508 (1961). The decision to grant or revoke a security clearance is committed to the discretion of the President by law. Egan, 484 U.S. at 527, 108 S.Ct. at 823. The district court therefore cannot review the merits of the department's decision to revoke Dorfmont's security clearance. See id. at 529-30, 108 S.Ct. at 824-25; Webster, 486 U.S. at 601, 108 S.Ct. at 2052.
18
B. Although Dorfmont fashions her claims as due process challenges, they are, save two, attacks on the merits of the decision to lift her security clearance. She argues essentially that her actions did not justify the lifting of her clearance: that the findings of the hearing examiner were contrary to the evidence; that the examiner must have been biased because his findings were contrary to the evidence and because he chose not to believe Dorfmont's testimony; that his findings were contrary to Department of Defense Directive 5220.6 Sec. F.3, which provides that a security clearance will be continued only if "clearly consistent with the national interest";1 that the examiner abused his discretion in denying Dorfmont's motion to dismiss; that he abused his discretion by failing to follow the remand order of the appeal board; and that the appeal board erred and abused its discretion by affirming the determination of the examiner after reconsideration. Dorfmont also complains that the criteria defendants use to make security clearance decisions do not assure a reasonable nexus between the applicant's behavior and the security objectives of the United States. All of these claims are attacks on the merits of the department's decision in this case and on security decisions generally; the district court has no authority to review them.
19
Dorfmont does, however, raise two claims that do not attack the substance of the department's decision. The appeal board, in affirming the determination of the hearing examiner, explained that it has no authority to reverse a decision of the examiner, but can only affirm or remand for further proceedings. Dorfmont claims that this limitation on the appeal board's review powers violates her right to procedural due process. Dorfmont also alleges that the criteria defendants use to make security clearance decisions are vague and arbitrary and therefore do not provide adequate notice of what conduct is likely to lead to revocation of a security clearance. Id. This is a substantive due process claim. See Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407 (9th Cir.1989) ("the due process clause includes a substantive component which guards against arbitrary and capricious government action"), cert. denied, --- U.S. ----, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). We must consider whether the district court can hear these claims.
20
II. Due Process Attack on Security Clearance Decisions
21
A. Webster held that even though section 102(c) of the National Security Act commits security-related CIA employment decisions to the director's discretion, that statute does not preclude judicial review of constitutional claims. 486 U.S. at 603, 108 S.Ct. at 2053. The plaintiff in Webster brought a host of such claims, all deriving from his contention that the decision to terminate his CIA employment was related to his homosexuality. Id. at 601-02, 108 S.Ct. at 2052-53. Without deciding whether such accusations present a colorable constitutional claim, the Court remanded to the district court for further proceedings. Id. at 603-04 & n. 8, 108 S.Ct. at 2053-54 & n. 8.
22
We took similar action in a case following Webster. In Dubbs v. CIA, 866 F.2d 1114, 1120-21 (9th Cir.1989), we affirmed the district court's ruling that it had no jurisdiction under the Administrative Procedure Act to review the CIA's denial of a security clearance, but remanded for the district court to consider Dubbs' claims that the CIA unconstitutionally discriminated against homosexuals in making security clearance determinations.
23
More recently, in High Tech Gays v. DISCO, 895 F.2d 563 (9th Cir.1990), we considered a class action that challenged a Department of Defense policy of conducting mandatory investigations of all homosexual applicants for Secret or Top Secret security clearance. Plaintiffs alleged that this policy deprived them of their speech and associational rights under the First Amendment, and of equal protection of the laws. Without addressing whether the federal courts have jurisdiction to hear these claims, we ruled in favor of defendants on the merits of the equal protection attack. Id. at 570-78.2
24
B. Webster thus did not consider whether the plaintiff had presented a colorable constitutional claim. The Court merely held that the district court had jurisdiction over such claims and remanded for further proceedings. 486 U.S. at 603-04 & n. 8, 108 S.Ct. at 2053-54 & n. 8. In Dubbs, we held that "a blanket policy of security clearance denials to all persons who engage in homosexual conduct would give rise to a colorable equal protection claim." 866 F.2d at 1119 n. 8. High Tech Gays also held that a challenge to security clearance decisions under the equal protection component of the Fifth Amendment Due Process Clause amounts to a colorable constitutional claim. See 895 F.2d at 570. None of these cases considered whether a plaintiff could state a colorable claim for denial of due process in the revocation or denial of a security clearance.
25
Dorfmont attempts to invoke due process, but the requirements of due process do not apply unless Dorfmont can first show that she has a cognizable liberty or property interest in her security clearance. See Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 2706, 33 L.Ed.2d 548 (1972); Coakley v. Murphy, 884 F.2d 1218, 1220 (9th Cir.1989). Egan dictates that she does not. Because there is a strong presumption against the issuance or continuation of a security clearance, and because the availability of a security clearance depends on an affirmative act of discretion by the granting official, "no one has a 'right' to a security clearance." Egan, 484 U.S. at 528, 108 S.Ct. at 824. Where there is no right, no process is due under the Constitution. Brady v. Gebbie, 859 F.2d 1543, 1547-48 (9th Cir.1988); San Bernardino Physicians' Services Medical Group, Inc. v. County of San Bernardino, 825 F.2d 1404, 1408-09 (9th Cir.1987).
26
Dorfmont argues that she has a protected liberty interest in her ability to practice her chosen profession, and a protected property interest in her employment at Hughes. But Dorfmont has not been deprived of the right to earn a living. She has only been denied the ability to pursue employment requiring a Defense Department security clearance. The ability to pursue such employment stands on precisely the same footing as the security clearance itself. If there is no protected interest in a security clearance, there is no liberty interest in employment requiring such clearance.
27
There is also no protected property interest in the clearance or in a job requiring such clearance. "Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source." Roth, 408 U.S. at 577, 92 S.Ct. at 2709. In order to have a constitutionally protected property interest in a government benefit, a person "must have more that an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id.
28
There is no such entitlement to a security clearance. This is not like the case where one is promised continued employment "except ... for ... misfeasance, malfeasance, or nonfeasance in office." Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 (1985) (holding that such a statutory promise did create a protected property interest in continued employment). There is a presumption against obtaining or maintaining a security clearance. A clearance may be maintained "only ... upon a finding that to do so is clearly consistent with the national interest." Department of Defense Directive 5220.6 Sec. F.3 (Aug. 12, 1985). There is no right to maintain a security clearance, and no entitlement to continued employment at a job that requires a security clearance. Dorfmont has not established a cognizable liberty or property interest and therefore is not entitled to constitutional due process protection. See Hill v. Department of Air Force, 844 F.2d 1407, 1411 (10th Cir.1988).
29
Dorfmont mistakenly relies on Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). In Greene the Court held that the Army could not, absent authorization from statute or the President, deprive petitioner of civilian employment by revoking his security clearance without first giving him an opportunity to examine evidence and confront witnesses against him. Id. at 508, 79 S.Ct. at 1419. The decision led directly to the Executive Order and Department of Defense Directive defining the procedures under which the department lifted Dorfmont's security clearance.
30
Greene does not help Dorfmont. Although the case appears superficially to allow a due process attack on a security clearance decision, it in fact does not. The Court stated explicitly that it was not deciding what procedures were constitutionally compelled, but only that petitioner could not be deprived of certain procedures in the absence of authorization from the President or Congress. Id. ("[T]raditional forms of fair procedure [should] not be restricted by implication or without the most explicit action by the Nations' lawmakers, even in areas where it is possible that the Constitution presents no inhibition.").
31
The Army contended that there was no protected liberty or property interest:
32
Although the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the "liberty" and "property" concepts of the Fifth Amendment, respondents contend that the admitted interferences which have occurred are indirect by-products of necessary governmental action to protect the integrity of secret information and hence are not unreasonable and do not constitute deprivations within the meaning of the Amendment.
33
Id. at 492, 79 S.Ct. at 1411 (citations omitted). The Court declined to address this claim, ruling instead on the narrower ground of "authorization." Id. at 493, 79 S.Ct. at 1412. In light of Egan, and for the reasons stated above, we believe that the Army's position is meritorious.
34
Our holding is also consistent with Webster, Dubbs and High Tech Gays. Those cases, to the extent they are relevant, stand for the proposition that federal courts may entertain colorable constitutional challenges to security clearance decisions. We hold only that a claim for denial of due process stemming from the revocation of a security clearance is not a colorable constitutional claim.
Conclusion
35
The district court does not have jurisdiction to hear attacks on the merits of security clearance decisions. We do not today decide if the court may hear constitutional attacks on these decisions, or the precise contours of such claims if allowed. We hold only that Linda Dorfmont cannot bring colorable constitutional claims for denial of due process. These are the only constitutional claims she presents. The district court was correct in concluding that it could not hear them.
36
AFFIRMED.
KOZINSKI, Circuit Judge, concurring:
37
This area of the law is marked by subtle concepts and fine distinctions; it also implicates fundamental principles of separation of powers, national security and individual rights. What a court does not decide can sometimes be as important--but far more difficult to divine--than what it does decide. I write separately to emphasize that an important constitutional question, unanswered by prior case law, is again left open.
38
The Director of Central Intelligence derives his discretionary authority over security-related employment decisions from an Act of Congress, section 102(c) of the National Security Act. See Webster, 486 U.S. at 594, 601, 108 S.Ct. at 2049, 2052. Webster 's ruling that courts may review constitutional challenges to such decisions was a matter of statutory construction, not constitutional interpretation.
39
In contrast, the present defendants and the defendant in Egan (the Department of Navy), derive their authority over security decisions by delegation from the President. Under the Constitution, the President has unreviewable discretion over security decisions made pursuant to his powers as chief executive and Commander-in-Chief. Egan, 484 U.S. at 527, 108 S.Ct. at 823. The Egan Court did not address whether there can be judicial review of constitutional attacks on such decisions. Had it done so, it would have faced a question of constitutional dimensions, a question very different from that addressed in Webster.1 See Egan, 484 U.S. at 527, 108 S.Ct. at 823 ("[The President's] authority to classify and control access to information bearing on national security ... flows primarily from this constitutional investment of power ... and exists quite apart from any explicit congressional grant.").
40
Does the Constitution preclude such review? The answer to this question may not be the same as the answer to the similar question of statutory construction resolved in Webster, as the Constitution erects barriers to judicial review that even Congress may not override. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170-71, 2 L.Ed. 60 (1803) ("Where the head of a department acts in a case, in which executive discretion is to be exercised; in which he is the mere organ of executive will; it is again repeated, that any application to a court to control, in any respect, his conduct would be rejected without hesitation."); Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962) (judicial review precluded where there is "a textually demonstrable constitutional commitment of the issue to a coordinate political department.").
41
Neither our earlier decision in High Tech Gays nor our opinion today purports to answer the difficult preliminary question whether courts may review the security clearance decisions of officials who derive their authority from the President. In High Tech Gays, we reached the merits of constitutional claims against such officials. However, defendants never raised, and we never considered, whether federal courts could hear the claims in the first place. Similarly, the parties before us today failed to join issue on this momentous separation-of-powers question. A constitutional analysis of the distinction between sources of authority in security clearance matters is best deferred when there are more obvious ways of resolving the dispute.2 Yet, in an appropriate case, it is a distinction that may well make a difference.
1
We recognize that federal courts normally have jurisdiction over claims that a federal agency did not follow one of its own regulations. See Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); Webster, 486 U.S. at 602 n. 8, 108 S.Ct. at 2053 n. 8. Dorfmont's claim that the examiner's determinations are contrary to section F.3 is, superficially at least, a claim of this type. Nonetheless, a federal court cannot hear this type of challenge. Section F.3 provides that a security clearance may be continued only if "clearly consistent with the national interest." Judicial review of the Defense Department's compliance with this directive would perforce involve a review on the merits of the decision to lift the security clearance. To undertake such review is to eviscerate Egan
2
We also held that plaintiffs failed to allege sufficient facts to raise a justiciable First Amendment claim. 895 F.2d at 580
1
It may be that the Director of Central Intelligence derives his discretionary authority from the President as well as from statute. The Court did not analyze the problem this way in Webster, that case therefore does not address the reviewability of executive security decisions made pursuant to the Constitution
2
That the court has addressed the merits of a case does not preclude a subsequent determination that the case was nonreviewable. For example, in United States v. Borrayo, 898 F.2d 91 (9th Cir.1989), without addressing the jurisdictional issue, we rejected on the merits a criminal defendant's claim that the district court erred by failing to depart downward from the prescribed Sentencing Guideline range. Subsequently, in United States v. Morales, 898 F.2d 99 (9th Cir.1990), we held that we lacked jurisdiction to review sentences for failure to depart downward
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878 F.2d 379Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Reginald C. BARRETT, Jr., Defendant-Appellant.UNITED STATES Of America, Plaintiff-Appellee,v.Jose Eliecer LONDONO, Defendant-Appellant.UNITED STATES Of America, Plaintiff-Appellee,v.Jose Antonio STORINO, Defendant-Appellant.
No. 88-5081.
United States Court of Appeals, Fourth Circuit.
Argued April 13, 1989.Decided June 16, 1989.
David Harrison Hopkins, Charles N. Shaffer (Shaffer & Davis, Chartered on brief), Sandra Jean Boek for appellants.
Sidney Rocke, Special Assistant United States Attorney (Henry E. Hudson, United States Attorney on brief) for appellees.
Before DONALD RUSSELL and CHAPMAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
Appellants were each convicted of possession of cocaine with intent to distribute in violation of 18 U.S.C. Sec. 841(a), interstate travel in aid of racketeering in violation of 18 U.S.C. Sec. 1952(1) & (3), and other drug related offenses arising out of a plan to bring large quantities of cocaine into the State of Virginia. Appellants were arrested in the parking area of the Washington National Airport at the moment six kilograms of cocaine were being delivered. All of the appellants claim error by the trial court in denying requests for informant information, in limiting the cross examination of the informant, in admitting evidence of appellant Londono's previous deportation from the United States, in failing to suppress appellant Barrett's post-arrest statements, and appellants Storino and Londono claim error in failing to sever their trials from that of Barrett. Finding no merit in these exceptions, we affirm.
2
* Appellant Barrett was renting a farm in Aldie, Virginia in the fall of 1987 when Chafic El Maghariki (Chafic) asked to live there. Barrett claims that although he had been involved in drug trafficking previously, and had prior drug convictions, at the time he met Chafic he was not interested in or involved with drugs. He claims that he was unduly persuaded and entrapped by Chafic, who became a DEA informant, into returning to the drug business. Chafic testified that Barrett was trying to arrange the importation of 700 kilograms of cocaine into the United States from Colombia and that they went to Mexico in an effort to work out the details. Chafic informed the DEA of Barrett's efforts and Agent William Yout took over the case. Chafic introduced Barrett to Yout, who was posing as a drug dealer interested in purchasing multi-kilos of cocaine. At their initial meeting on October 9, 1987, Yout purchased one kilo of cocaine from Barrett at his farm. This kilo had been previously retrieved from Indiana by Barrett and Chafic. At this meeting and sale, Yout and Barrett discussed additional coke purchases. One week later Yout and Barrett met at LaGuardia Airport in New York to discuss future purchases, and they met again on November 9, 1987 at National Airport for further discussions. In subsequent telephone conversations they agreed upon a price of $20,000 per kilo for 12 kilos of cocaine, but the delivery site and date were not set. Additional telephonic communications followed and DEA agents Emile Manara and Judy Young came into the pictures as alleged associates of Yout.
3
On December 4, 1987, Agent Manara met Barrett at the Marriott in Arlington, Virginia, but Barrett said he did not like to do business in motels and would prefer to make the sale at his farm. He counted $120,000 Manara had brought to the meeting and stated that the kilos had been brought from New York by two persons in the cavity of an automobile. It was agreed that the deal would be consummated at the National Airport, and Barrett stated he would put the cocaine into a parked car at the airport and give Agent Young the keys so that the car could be driven away.
4
That afternoon Barrett and Manara met at the airport and walked to the parking area. Other DEA agents had the area under surveillance, and they, in addition to Manara, noticed that appellants Londono and Storino were nearby and acting as lookouts. When Barrett opened the trunk of the automobile and showed Manara the six kilos of cocaine, he was arrested. Londono and Storino were arrested as they attempted to leave the area.
5
Barrett consented to a search of the farm and Storino's automobile was found there. Testimony established that the vehicle had been modified by lowering the gas tank to make an area or cavity to facilitate the concealment and transportation of drugs.
II
6
Pursuant to Federal Rule of Criminal Procedure 16 Barrett moved for information about the informant Chafic, seeking a copy of his conviction record, any charges anticipated to be brought at the time he began his cooperation with the DEA agents, any promises or representations made to him including immunity or other leniency, any statements made to induce his cooperation in this case or others, any statements or terms of employment and whether payment was by cash or by check, the name of each case, case number and the nature and scope of activities of Chafic, copies of all sworn testimony in any other forums, copies of documents or transcripts evidencing unreliability, the circumstances of any polygraph examination and the informant's file maintained by the DEA.
7
In response to this motion, the United States Attorney stated that since the information sought was primarily for impeachment purposes, it would be produced five days before trial, if he planned to call Chafic as a government witness. The trial judge agreed with this course of action. Chafic was not called as a government witness, but Barrett called him as a defense witness in an effort to establish entrapment. Appellants claim error in the failure to provide all of the documents they sought under Rule 16 and also claim that the trial judge unduly restricted the examination of Chafic.
8
The court allowed Barrett's attorney to ask Chafic about his employment, the way he was paid and what he did in the present case. The court also allowed testimony as to Chafic's criminal history, his business interests and any promises or agreements between Chafic and the DEA. He was also allowed to testify that he had previously worked for the DEA, but the judge sustained a government objection as to the specifics of other cases. Questions were also allowed which required Chafic to testify as to his income and employment since the Barrett arrest.
9
Under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), the government must furnish the defendant with material that may be used to substantially impeach a key government witness. However, these cases are not applicable to the present facts. Chafic was not called as a government witness and he was only a minor participant in the activities that produced the arrest and conviction of the defendants. Once he introduced Barrett to Yout, the initiative was taken by Yout and Chafic played no important role in the subsequent events. The appellants had the benefit of Chafic's testimony, and they were allowed to prove his employment by the DEA for impeachment purposes.
10
We find no error in the rulings by the trial judge in sustaining objections to testimony that would have gone into the specific details of other cases in which Chafic had been involved.
11
The failure of the government to produce the information requested under Rule 16 did not prejudice Barrett in his effort to establish entrapment. Since Barrett had five prior felony drug convictions and the evidence showed various meetings and conversations with the DEA agents, and trips to Mexico, Indiana and New York, it is difficult to see how he expected to establish the affirmative defense of entrapment.
III
12
Appellants Londono and Storino claim error because the trial court denied their motions to sever their trials from that of Barrett. They claim a prejudicial spill-over effect from testimony about Barrett's prior convictions, prior drug dealings, and efforts to import large quantities of cocaine from South America. Under Federal Rule of Criminal Procedure 8(b), defendants may be charged together if they are alleged to have participated in the same act or transaction constituting an offense or offenses. It is not necessary that all defendants be charged in all counts of the indictment or with all of the underlying acts. Conspiracy cases are particularly appropriate for joinder and joint trial, even though there may be some spill-over of evidence that is admissible against one defendant and not another. The trial judge covered this problem in his final charge and there was no request by defense attorneys for an instruction on this point during the presentation of evidence. In United States v. Lane, 474 U.S. 438, 449 (1986) the court stated:
13
[W]e hold that an error involving misjoinder "affects substantial rights" and requires reversal only if the misjoinder results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict."
14
There has been no showing that the joint trial had an injurious effect on determining the jury's verdict, and joinder in the present case is in keeping with Bruton v. United States, 391 U.S. 123, 134 (1968), which stated that joint trials "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial."
IV
15
There is no merit to Londono's claim that he was prejudiced because the government brought out the fact that he had been previously deported as an illegal alien. He opened the door to this type testimony when he called his sister as a character witness and she testified to the effect that he had never done anything illegal or against the law. She was then asked about his deportation and this was proper under Michelson v. United States, 335 U.S. 469, 479 (1948), where the court discussed the use of and cross examination of character witnesses. It stated:
16
The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him ... his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his conclusion.
17
Id.
V
18
There was sufficient evidence to convict Londono and Storino although they did not show up until late in the day. They contend that they were mere couriers and not involved in a conspiracy. Chafic testified that Barrett had asked him to drive Barrett's automobile to a particular repair shop in New Jersey, and at this repair shop Londono had inspected the car to determine how many kilos of cocaine could be hidden in it. Londono admitted that he drove down from New Jersey in the car that contained the cocaine that was sold at the airport. However he testified that he was coming to Virginia in the hope of finding work on a farm, but he did not know the name of anyone who owned a farm or of any openings on a farm. Storino owned the automobile that was used to transport the cocaine and this automobile had been modified to provide an enlarged concealed area for transportation.
VI
19
Appellants Londono and Storino claim error because of the failure of the trial court to suppress Barrett's post-arrest statement in which he identified photographs of Londono and Storino and stated that they were the drivers of the automobile from New Jersey. When Barrett was on the stand, he admitted that he had told the agents that Londono and Storino had "brought the car that had the drugs in it. I did not tell him that they brought the drugs. I said they brought the car that the drugs were concealed in. That is what I told him." Appellants contend that this testimony violated the rule established in Bruton v. United States, 391 U.S. 123 (1968) and United States v. Truslow, 530 F.2d 257 (4th Cir.1975). However, a Bruton problem was not created in the present case because Barrett took the witness stand and was subject to cross examination by the attorneys for Londono and Storino. Truslow, like Bruton, involved a statement by one defendant that implicated other defendants and the declarant did not testify. The crucial difference is that in the present case Barrett did testify and was subject to cross examination. The present facts are similar to those in United States v. Palow, 777 F.2d 52 (1st Cir.1985) which held that there was no confrontation problem in the admission of a codefendant's post-arrest statement against other defendants where the codefendant testified and was cross examined by counsel for the other defendants.
20
We find no merit in the remaining exceptions, and we affirm.
21
AFFIRMED.
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879 F.2d 863Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 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 Fourth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Billy FLANERY, Jr., Defendant-Appellant,
No. 88-5605.
United States Court of Appeals, Fourth Circuit.
Argued: Jan. 13, 1989.Decided: July 13, 1989.
Charles Randall Lowe (Yeary, Tate and Lowe, P.C., on brief), for appellant.
Jerry Walter Kilgore, Assistant United States Attorney (John P. Alderman, United States Attorney, on brief), for appellee.
Before DONALD RUSSELL and WILKINS, Circuit Judges, and J. FREDERICK MOTZ, United States District Judge for the District of Maryland, sitting by designation.
PER CURIAM:
1
Billy Flanery, Jr. appeals the district court's judgment of conviction and order of sentence following a trial by jury where he was found guilty of various charges stemming from his involvement in a bank robbery. For the reasons discussed below, we affirm the district court's judgment and order.
I.
2
In July 1987, the appellant and Lavonda Brown1 drove from Detroit, Michigan to West Virginia, where the appellant purchased two guns at a flea market. After a brief trip back to Michigan, the two drove to Pennington Gap, Virginia. On August 6, 1987, Flanery and Brown drove to nearby St. Charles, Virginia, where Flanery identified to Brown the Lee Bank and Trust Company of St. Charles as the bank he was planning to rob. On August 7, after some target practice with the gun Flanery was to use in the bank robbery, Flanery and Brown drove to the Lee Bank and Trust. At Flanery's request, Brown telephoned the Lee County Sheriff's Department and described a fictitious shooting in another part of the county. Then, the two went inside the bank. While Brown acted as lookout, Flanery brandished a gun at the tellers and robbed the bank of $9,160.
3
After the robbery, Flanery and Brown drove to an acquaintance's house where Flanery bought two more guns. Law enforcement officials arrested Flanery and Brown later that day as they were driving to Kentucky. Officers removed a .22 derringer from Flanery's pocket. After Flanery signed a consent form permitting the officers to search the car, the officers removed three guns from the car: a .38 Webley (identified as the gun used during the bank robbery), a .32 Colt Police Special, and a .22 Magnum.
4
On August 11, 1987 Flanery appeared before a United States Magistrate, who entered a detention order pursuant to 18 U.S.C. Sec. 3142 with the express understanding of counsel that Flanery would have access to medical, psychological, or psychiatric treatment as a pre-trial detainee. The government moved for a determination of Flanery's mental competence to stand trial pursuant to 18 U.S.C. Sec. 4241, and on August 13 the district court ordered Flanery committed to the custody of the United States Attorney General and transported to the Federal Correctional Institute in Butner, North Carolina ("Butner") for psychological and psychiatric examinations. Although this order committed Flanery to Butner for 30 days, the district court granted Butner's request for a 15-day extension in which to complete its evaluation of Flanery.
5
On October 15, 1987 the district court, after a hearing, concluded that Flanery "suffer[ed] from a mental defect which would prevent him from assisting properly in his defense." Accordingly, the district court ordered that Flanery "be remanded back to the custody of the Attorney General for further treatment [at Butner] under 18 U.S.C. Sec. 4241(d)2 to determine within a reasonable period of time whether defendant will attain the capacity to permit the trial to proceed."
6
On January 25, 1988 Flanery's counsel wrote to Butner authorities and the government, reminding them that the terms of 18 U.S.C. Sec. 4241(d) limited Flanery to a four-month stay in Butner for evaluation, namely October 15, 1987 to February 15, 1988. On February 9, 1988, Butner's Chief of Psychology Services, Dr. James Hilkey, acting with a psychiatrist and a medical doctor, concluded that Flanery was competent to stand trial. This report was forwarded to the district court on February 23, 1988 and was filed with the clerk of the district court on March 1, 1988.
7
On March 14, 1988, the district court heard oral argument on Flanery's motion to dismiss the charges due to the alleged untimeliness of the competency report. The defendant argued that the Government had not applied for an extension under Section 4241(d) and that the district court had not made a finding prior to March 1 regarding the defendant's competency. The district court, however, held that the competency report was completed within the four month period mandated by 18 U.S.C. Sec. 4241(d), denied Flanery's motion to dismiss, and appointed a psychiatrist to determine Flanery's competency at the time of the robbery.
8
At the competency hearing preceding the trial, Flanery's counsel renewed his objection to the Butner report, claiming it was not timely filed. Counsel argued that because Flanery was hospitalized longer than four months, Butner had no right to examine him and offer an opinion past that four month period. Consequently, the opinion attesting to Flanery's competency was late and ought not to have been heard by the court. Thus, the only report the court had before it stated that defendant was incompetent. The court overruled the motion, and the case proceeded to trial before a jury on May 2 and 3, 1988.
9
At trial, the central issue was whether Flanery had been mentally competent at the time of the robbery. Both parties presented expert testimony. At the end of trial, defendant's motion for acquittal on all counts of the indictment was denied. The jury returned a verdict of guilty on all counts of the indictment; at sentencing, however, the district court found that the indictment overlapped and acquitted the defendant on four counts. The court sentenced defendant to concurrent sentences of 25 years in prison for bank robbery with a dangerous weapon and to five years for transporting firearms in interstate commerce. Subsequently, the district court denied the defendant's motion for reduction of sentence and for correction of sentence. Flanery appealed, claiming ten errors. We deal with each of these in turn.
II.
10
On appeal, Flanery first argues that the district court lost its jurisdiction to try him on the charges in the indictment because he was held at Butner beyond the four-month time period permitted by Section 4241(d)(1). The appellant argues that he was sent to Butner on October 15, 1987, and his four-month term of treatment expired on February 15, 1988. The Butner psychiatrist completed his evaluation on February 9, 1988, but the report was not sent to the district court until February 23, 1988, and was not filed with the clerk of court until March 1, 1988. Thus, because the court did not grant an extension of time for treatment, and because the court did not find within the four-month period that the defendant was competent to stand trial, the court lacked jurisdiction over the defendant after February 15, 1988.
11
The question in this case, then, becomes whether the four-month period of federal custody necessitates just an evaluation within that time, or an evaluation as well as the filing of the proper papers and determination by the court of competency. The appellant relies on United States v. Baker, 807 F.2d 1315 (6th Cir.1986), which stated that Section 4241(d) "requires that a determination as to the individual's mental condition be made within four months, and that the individual cannot be held pursuant to Section 4241 in excess of four months unless the court finds that the individual is likely to attain competency within a reasonable time." Id. at 1320. The appellant also relies on United States v. Charters, 829 F.2d 479 (4th Cir.1987), vacated, 863 F.2d 302 (4th Cir.1988), wherein a panel of this court noted that Section 4241(d) "permits federal custody and treatment of the individual for four months, a period of time, ... which Congress deemed adequate to determine the probability that the individual would regain competence in the foreseeable future." 829 F.2d at 485.
12
We believe that appellant's reliance on Baker and Charters is misplaced. In Baker, the court clearly stated that "a determination as to the individual's mental condition [must] be made within four months." 807 F.2d at 1320 (emphasis added). In the present case, the appellant was determined to be mentally competent on February 9, 1988, six days before the four-month evaluation period expired. And in Charters, this court merely observed that Section 4241(d) "permits federal custody and treatment of the individual for four months," instead of the three-year period for which the defendant in that case was confined. 829 F.2d at 485. In fact, Charters states that the four-month period was the amount of time "Congress deemed adequate to determine the probability that the individual would regain competence in the foreseeable future." Id. In the present case, the determination of the appellant's competency occurred within the prescribed time. Neither Baker nor Charters states that the evaluation must not only occur but be forwarded to the district court within the four-month period mandated by Section 4241(d).
13
The legislative history of Section 4241(d) also indicates that only the determination of competency must occur within the four-month period. "In accord with the Supreme Court's holding in Jackson v. Indiana [406 U.S. 715 (1972) ], commitment under Section 4241 may only be for a reasonable period of time necessary to determine if there exists a substantial probability that the person will attain the capacity to permit the trial to go forward in the foreseeable future. Under Section 4241(d)(1), the period may not exceed four months, however." S.Rep. No. 225, 98th Cong., 2d Sess., reprinted in 1984 U.S.Code Cong. & Ad.News, 3182, 3418. Again, this language suggests that the four-month period is for determination of the defendant's condition and does not include the time needed to file the evaluation with the court.
14
We hold, therefore, that the statute intends that only the evaluation be completed within the four-month time period. The language of Section 4241(d)(1) states that the four-month period of hospitalization is for the determination of the defendant's competency; the language says nothing about appropriate notification to the court. It is improbable that Congress meant to include in the four-month period the time needed to notify the court; if that indeed were the case, then the four-month evaluation period would by necessity be shortened to take into account the time needed to mail the reports to the court and have them filed. Thus, as long as the facility makes an evaluation of a defendant within the required time, the defendant may be held past the four-month period and the district court will retain jurisdiction. Of course, we recognize that if the four-month period means only that time in which the evaluation must occur, it would be possible that defendants could be held far past the confinement period while they waited for facility administrators to file their reports with the court. That, however, would suggest a lack of good faith on the part of these officials, and there is nothing to suggest a lack of good faith by Butner officials in the present case.
15
In sum, the statute provides only that the examination must occur within four months. To read into the statute that the four-month period also must include time for filing the report with the court would subject the entire institutionalization-for-evaluation process to the whims of both the Post Office and various administrative employees. That result clearly was not intended by the statute. We hold that the defendant in this case was properly detained under Section 4241(d) and that the district court had jurisdiction over the defendant at all times.
III.
16
Further, the appellant contends that the police engaged in an unlawful search of the car pursuant to his arrest and that the district court erred in refusing to suppress this evidence. At the time appellant was arrested, the police took one gun from the defendant's pocket. Appellant's other three guns were discovered during a search of the car after he had consented to the search. On appeal, Flanery argues that he was mentally incompetent to consent to the search, and offers as proof the fact that he was committed to the custody of the Attorney General for the purpose of a psychiatric examination abut one week after his arrest. The appellant, however, cites no authority for the proposition that such incompetency renders consent to the search invalid.
17
There is no suggestion in the record that the appellant was subjected to duress or coercion. "[T]he question whether a consent to a search was in fact 'voluntary' or was the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances." Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973). We note that at the scene of his arrest, the appellant consented to the search of his car and signed the proffered consent form and that when appellant was advised of his rights, he said, "I understand my rights. I know my rights." In addition, Butner's Dr. Hilkey also testified that Flanery was capable of consenting to the car search. Based on this evidence, the trial court did not err in holding that the appellant voluntarily consented to the car search. In sum, the firearms were discovered during a valid search of appellant's vehicle, and the trial court did not err in admitting the firearms as evidence at trial.
IV.
18
The appellant also contends that he was unfairly prejudiced at trial because the trial court allowed "a laundry list" of criminal charges pertaining to the six count indictment to go before the jury. The appellant argues that five of the counts of the indictment were multiplicious because all of the offenses listed arose out of or were directly related to the bank robbery. Flanery specifically argues that he should not have been charged under both Counts Two and Four, and that he should not have been charged under both counts Four and Five. The indictment, however, merely included all the charges which the facts could support. Count Two charged Flanery with taking money from a bank by force, violence, and intimidation in violation of 18 U.S.C. Sec. 2113(a); Count Four charged Flanery with using a dangerous weapon during the bank robbery in violation of 18 U.S.C. Sec. 2113(d); Count Five charged Flanery with using and carrying a firearm during a bank robbery in violation of 18 U.S.C. Sec. 924(c)(1). The jury convicted Flanery of violations of Sections 2113(a), 2113(d) and 924(c)(1). At worst, the trial court's decision to let all counts of the indictment go to the jury is harmless error because it later properly acquitted Flanery of violations of Sections 2113(a) and 924(c)(1). See McLean v. United States, 449 F.Supp. 1036, 1040 (E.D.N.C.1978) (In a single bank robbery, a defendant may be convicted of violating (a), (b), and (d) of Section 2113, but the trial court must vacate the duplicitous sentences for the lesser offenses under (a) and (b)); see also Simpson v. United States, 435 U.S. 6, 16 (1978) (In a single bank robbery, a defendant cannot be sentenced under both Sections 2113(d) and 924(c)). We hold that the trial court properly permitted all six counts of the indictment to go before the jury.
V.
19
Further, the appellant contends that the district court erred by imposing an improper sentence and wrongly refusing the motion for reduction of sentence. The appellant was convicted under 18 U.S.C. Sec. 2113(d), which carries a maximum term of twenty-five years in prison, as well as under 18 U.S.C. Sec. 924(b), which carries a maximum term of ten years in prison. Flanery was sentenced to thirty years in prison; the sentence therefore is within the statutory limits and as such is not subject to review unless it is founded upon misinformation of "constitutional magnitude." United States v. Bernard, 757 F.2d 1439, 1444 (4th Cir.1985), quoting United States v. Tucker, 404 U.S. 443, 447 (1972). We hold that the trial court correctly sentenced Flanery to thirty years in prison. We also hold that the trial court did not abuse its discretion in denying the Fed.R.Crim.P. 35(b) motion for reduction of sentence. See United States v. Lauga, 762 F.2d 1288, 1291 (5th Cir.), cert denied, 474 U.S. 860 (1985).
VI.
20
Appellant also asserts that the district court erred in admitting the testimony of the government psychiatrist Jr. James Hilkey. Appellant contends that because Dr. Hilkey was retained to determine appellant's competency to stand trial, he could not offer an opinion as to appellant's competency at the time of the offense without first submitting a written evaluation of appellant's competency at the time of the offense. We find this argument to be meritless. As the Fifth Circuit has noted, "although the issues of sanity at the time of the offense and competency to stand trial are indeed different, it does not follow 'that a psychiatrist investigating the competency of an accused to stand trial can never be qualified to express an opinion as to his sanity a few months earlier.' " United States v. McCracken, 488 F.2d 406, 411 n. 3 (5th Cir.1974), citing Birdsell v. United States, 346 F.2d 775, 780 (5th Cir.), cert. denied, 382 U.S. 963 (1965). We hold that the trial court properly admitted Dr. Hilkey's testimony.
VII.
21
Flanery's remaining assignments of error are meritless. First, the district court did not err in admitting the bank teller's testimony regarding her fear during the robbery; Sections 2113(a) and (d) require the government to prove that Flanery committed the bank robbery by force, violence, or by jeopardizing the life of any person. Second, the district court did not err in questioning a defense witness in order to clarify certain testimony; indeed, the district court, to insure that the jury is not needlessly confused by testimony, may question a witness to dispel ambiguity in testimony. See United States v. Pisani, 773 F.2d 397, 403 (2d Cir.1985). Third, the district court's decision to permit the government to close the case was correct. In raising an insanity defense under 18 U.S.C. Sec. 17, the defendant must prove his defense of insanity by clear and convincing evidence. The government, however, in proving a criminal case, must establish every element of the crime beyond a reasonable doubt. Smart v. Leeke, No. 87-7737 (4th Cir. May 4, 1989), citing In re Winship, 397 U.S. 358, 361-62 (1972). The district court was correct in allowing the government, because it had the higher burden of proof, to close the case.
22
The appellant also claims that the trial court erred when it denied his motion for acquittal at the end of the trial. The trial court denied the motion and permitted all six counts of the indictment to go to the jury, which found Flanery guilty on all six counts. Afterwards, the court issued a judgment of acquittal for Counts One, Two, Five, and Seven, and entered the convictions on Counts Four and Six. On appeal, Flanery contends that he should be acquitted on these counts as well. In this circuit, "[t]he test for deciding a motion for a judgment of acquittal is whether there is substantial evidence (direct or circumstantial) which, taken in the light most favorable to the prosecution, would warrant a jury finding that the defendant was guilty beyond a reasonable doubt." United States v. MacCloskey, 682 F.2d 468, 473 (4th Cir.1982). We hold that the evidence presented at trial was sufficient to convict Flanery on Counts Four and Six, and that the district court did not err in denying the motion for acquittal.
23
We also hold that the district court did not err in refusing to give the defendant's jury instruction defining the term "wrongfulness" as moral wrongfulness rather than criminal wrongfulness. The statute merely states that "[i]t is an affirmative defense to a prosecution" if "the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts." 18 U.S.C.A. Sec. 17(a) (West Supp.1989). At trial, Flanery presented testimony by his sister and by a psychiatrist that he had been hearing voices that told him to rob a bank and use the money to build a temple. Flanery's defense psychiatrist, however, also stated that Flanery bought the guns for target practice and obtained them because he wanted them as a hobby, not because the voices told him to buy them.
24
We note that the Eighth Circuit recognizes "that a defendant's delusional belief that his criminal conduct is morally justified may establish an insanity defense under federal law, even where the defendant knows that the conduct is illegal." United States v. Dubray, 854 F.2d 1099, 1101 (8th Cir.1988). See also United States v. Seqna, 555 F.2d 226, 232-33 (9th Cir.1977). We are, however, unwilling to adopt this rule under the facts of this case. A review of the record indicates that there was no evidence of defendant's moral justification of the bank robbery--merely evidence that voices compelled Flanery to rob the bank. As the Dubray court stated, "[t]he jury should be instructed on the distinction between moral and legal wrongfulness, however, only where evidence at trial suggests that this is a meaningful distinction in the circumstances of the case." Dubray, 854 F.2d at 1101, citing United States v. Minq Sen Shuie, 650 F.2d 919, 922 n. 7 (8th Cir.1981) and Seqna, 555 F.2d at 233. We hold that the trial court did not err in refusing Flanery's proffered jury instruction regarding moral wrongfulness.
VIII.
25
Accordingly, the judgment of conviction is affirmed.
26
AFFIRMED.
1
Lavonda Brown pled guilty to charges stemming from her involvement in the bank robbery. She served seven months in jail and was released on probation. Brown testified for the government at appellant's trial
2
18 U.S.C. Sec. 4241(d) provides in pertinent part:
(d) Determination and disposition.--If, after the [competency] hearing, the court finds by a preponderance of the evidence that the defendant is presently suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense, the court shall commit the defendant to the custody of the Attorney General. The Attorney General shall hospitalize the defendant for treatment in a suitable facility--
(1) for such a reasonable period of time, not to exceed four months, as is necessary to determine whether there is substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed; and
(2) for an additional reasonable period of time until--
(A) his mental condition is so improved that trial may proceed, if the court finds that there is a substantial probability that within such additional period of time he will attain the capacity to permit the trial to proceed; or
(B) the pending charges against him are disposed of according to law;
whichever is earlier.... (Emphasis added).
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12‐711‐ag
Doe v. Lynch
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 COURTʹS 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
ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 10th day of December, two thousand fifteen.
PRESENT:
ROBERT D. SACK,
DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
JOHN DOE,
Petitioner,
v. 12‐711‐ag
LORETTA E. LYNCH, United States Attorney
General,
Respondent.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PETITIONER: JUSTIN CONLON, North Haven, CT.
FOR RESPONDENT: MICHAEL C. HEYSE, Trial Attorney, Office of
Immigration Litigation; Benjamin C. Mizer,
Acting Assistant Attorney General, Civil
Division; Mary Jane Candaux, Assistant
Director, Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
FOR AMICI CURIAE: TRINA REALMUTO, National
Immigration Project of the National
Lawyers Guild, for Amici Curiae National
Immigration Project of the National Lawyers
Guild and Immigrant Defense Project, Boston,
MA.
UPON DUE CONSIDERATION of this petition for review of a decision
of the Board of Immigration Appeals (ʺBIAʺ), it is hereby ORDERED, ADJUDGED,
AND DECREED that the petition for review is DENIED.
John Doe,1 a native and citizen of the Dominican Republic, seeks review of
a February 8, 2012 order of the BIA affirming the December 2, 2009, decision of an
Immigration Judge (ʺIJʺ), which denied his motion to reopen. In re John Doe, No. A078
391 324 (B.I.A. Feb. 8, 2012), affʹg No. A078 391 324 (Immig. Ct. Hartford Dec. 2, 2009).
We assume the partiesʹ familiarity with the underlying facts, the procedural history of
the case, and the issues on appeal.
We review the BIAʹs denial of a motion to reopen for abuse of discretion,
including its finding that a movant failed to establish prima facie eligibility for the
1 Pursuant to Petitionerʹs unopposed motion, his name has been redacted from
the docket.
2
underlying relief sought. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir. 2005); see also INS v.
Abudu, 485 U.S. 94, 104‐05 (1988). ʺAn abuse of discretion may be found in those
circumstances where the Boardʹs decision provides no rational explanation, inexplicably
departs from established policies, is devoid of any reasoning, or contains only summary
or conclusory statements; that is to say, where the Board has acted in an arbitrary or
capricious manner.ʺ Kaur, 413 F.3d at 233‐34 (quoting Zhao v. DOJ, 265 F.3d 83, 93 (2d
Cir. 2001)). We find no abuse of discretion in this case.
Initially, because Doe is removable based on a conviction for an
aggravated felony and controlled substance offense, our jurisdiction to review the BIAʹs
denial of his motion to reopen is limited to constitutional claims and questions of law.
See 8 U.S.C. § 1252(a)(2)(C), (D); Durant v. INS, 393 F.3d 113, 115 (2d Cir. 2005); see also
Ortiz‐Franco v. Holder, 782 F.3d 81, 86 (2d Cir. 2015). Accordingly, we may review Doeʹs
arguments that he established, or will establish in reopened proceedings, his statutory
eligibility for withholding of removal and relief under the Convention Against Torture
(ʺCATʺ). See 8 U.S.C. § 1252(a)(2)(D); Richmond v. Holder, 714 F.3d 725, 728 (2d Cir. 2013)
(ʺWe have jurisdiction to examine, as a question of law, a petitionerʹs statutory
eligibility for relief from removal.ʺ).
On appeal, Doe argues that the agency erred by (1) failing to consider his
cooperation with prosecutors as a circumstance mitigating the presumption that his
drug trafficking conviction was a particularly serious crime, (2) applying a heightened
3
legal standard as opposed to a prima facie eligibility standard to his motion to reopen
and misstating the willful blindness standard, and (3) failing to explain how its CAT
jurisprudence is consistent with its obligations under the United Nations Convention
Against Transnational Organized Crime (ʺCATOCʺ) and a ʺstate‐created dangerʺ
theory. We address each argument in turn.
A. Particularly Serious Crime Determination
As the agency found, Doe failed to establish his prima facie eligibility for
withholding of removal because he was convicted of trafficking large quantities of
controlled substances. Matter of Y‐L‐, A‐G‐, & R‐S‐R‐, 23 I. & N. Dec. 270 (A.G. 2002)
(hereinafter ʺMatter of Y‐L‐ʺ), overruled on other grounds by Khouzam v. Ashcroft, 361 F.3d
161, 170‐71 (2d Cir. 2004). Doe does not contend that the agency misapplied the
standard set forth in Matter of Y‐L‐, but asserts that the standard is not entitled to
deference because the Attorney General unreasonably declined to consider cooperation
with prosecutors as a circumstance mitigating the strong presumption that drug
trafficking aggravated felonies are particularly serious crimes. When reviewing the
Attorney Generalʹs interpretation of the Immigration and Nationality Act, we defer to
the agencyʹs interpretation so long as it is reasonable in light of the two‐step analysis set
forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
Here, the withholding of removal statute does not define ʺparticularly serious crime,ʺ
and the phraseʹs meaning is ambiguous. See, e.g., Mei Fun Wong v. Holder, 633 F.3d 64,
4
74 (2d Cir. 2011). The Attorney Generalʹs creation of strong presumptions involving
drug trafficking convictions was a reasonable interpretation of the statute because the
text itself provides the Attorney General with discretion to make the determination. See
8 U.S.C. § 1231(b)(3)(B)(ii) (ʺSubparagraph (A) does not apply … if the Attorney General
decides that . . . the alien, having been convicted of . . . a particularly serious crime is a
danger to the community of the United Statesʺ and ʺ[the per se category of particularly
serious crimes] shall not preclude the Attorney General from determining that,
notwithstanding the length of sentence imposed, an alien has been convicted of a
particularly serious crime.ʺ (emphases added)); Miguel‐Miguel v. Gonzales, 500 F.3d 941,
948 (9th Cir. 2007).
Amici Curiae argue that the agency erred because it should have
conducted a separate analysis as to whether Doe is a danger to the community. This
argument fails as a matter of law. The BIA has held that the determination of whether
an individual poses a danger to the community is subsumed in the analysis of whether
the crime is particularly serious; this Court has deferred to that holding under Chevron.
See Flores v. Holder, 779 F.3d 159, 167 (2d Cir. 2015) (ʺWe have accorded Chevron
deference … to the BIAʹs interpretation that no separate danger to the community
analysis is required when determining whether a crime is particularly serious.ʺ);
Nethagani v. Mukasey, 532 F.3d 150, 154 n.1 (2d Cir. 2008) (ʺ[T]he BIA has held that [an]
alien [convicted of a particularly serious crime] necessarily constitutes ʹa danger to the
5
community of the United States.ʹ We have accepted the BIAʹs interpretation of the
statute.ʺ (citing Ahmetovic v. INS, 62 F.3d 48, 52‐53 (2d Cir. 1995))). We are bound by
these decisions ʺunless and until the precedents established therein are reversed en banc
or by the Supreme Court.ʺ United States v. Jass, 569 F.3d 47, 58 (2d Cir. 2009).
B. Prima Facie Evidentiary Standard and Willful Blindness
The agency also reasonably determined that Doe failed to establish his
prima facie eligibility for CAT relief. Contrary to Doeʹs contention, the BIA correctly
applied the prima facie evidentiary standard for motions to reopen and concluded that
Doe could not establish CAT eligibility. Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.
2005) (holding that a movant must demonstrate ʺa realistic chanceʺ that he could
establish eligibility). While the BIA correctly stated the willful blindness evidentiary
standard in one sentence and then misstated it in the following sentence, see Khouzam,
361 F.3d at 171 (requiring government officials to ʺknow of or remain willfully blind to
an act [of torture]ʺ (emphasis added)), remand for the BIA to address the error is not
necessary. Its alternate finding, that Doeʹs CAT claim was too speculative, was not
tainted by this error. See Xiao Ji Chen v. DOJ, 471 F.3d 315, 338 (2d Cir. 2006).
Apart from these questions of law, Doe argues that that he sufficiently
established prima facie eligibility for CAT relief because the evidence showed that his co‐
defendant had both means and motive to bribe corrupt Dominican officials, the
Dominican Republic suffers from widespread drug violence, and some corrupt officials
6
had accepted bribes from drug traffickers in the past. We lack jurisdiction to review
this evidentiary‐based challenge, because the likelihood of a future event is a finding of
fact. See Hui Lin Huang v. Holder, 677 F.3d 130, 134‐35 (2d Cir. 2012).
C. Doeʹs CATOC and ʺState‐Created Dangerʺ Claims
Doe concedes that the CATOC provides no independent ground for relief
in removal proceedings, as this Court has held. See Doe v. Holder, 763 F.3d 251, 255‐57
(2d Cir. 2014) (holding CATOC is not self‐executing and requires implementation
through domestic legislation); see also Matter of G‐K‐, 26 I. & N. Dec. 88 (B.I.A. 2013)
(holding that CATOC does not provide independent grounds for relief and its
objectives are already advanced through existing immigration laws). He contends,
however, that remand is appropriate because in Matter of G‐K‐, the BIA failed to explain
how its CAT jurisprudence is consistent with the United Statesʹ obligations under
CATOC and a ʺstate created dangerʺ theory. Doe provides no legal authority, however,
for his contention that given CATOC, the BIA should disregard the burden of proof
required to sustain a CAT claim. See 8 C.F.R. § 1208.16(c)(2). He therefore has identified
no basis for challenging the IJʹs conclusion. We see no reason to disagree with the BIAʹs
conclusion that a state‐created danger theory does not provide a valid basis for
reopening Doeʹs removal proceedings. See Kamara v. Attʹy Gen., 420 F.3d 202, 216‐18 (3d
Cir. 2005).
7
For the foregoing reasons, the petition for review is DENIED. As we have
completed our review, the pending motion for a stay of removal in this petition is
DENIED as moot.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
8
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