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4,638,788 | 2020-12-02 16:03:03.659483+00 | null | https://edca.4dca.org/DCADocs\2020/1954/201954_DC02_12022020_102513_i.pdf | DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ARMANDO CABALLERO,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
No. 4D20-1954
[December 2, 2020]
Petition for writ of habeas corpus to the Circuit Court for the
Seventeenth Judicial Circuit, Broward County; Andrew L. Siegel, Judge;
L.T. Case No. 01-009967CF10A.
Armando Caballero, Chipley, pro se.
No appearance for respondent.
PER CURIAM.
Aramando Caballero petitions this court for a writ of habeas corpus,
alleging he is illegally incarcerated based on faulty DNA evidence. This is
not the proper use of the great writ of habeas corpus, and his claim should
have been brought upon Florida Rule of Criminal Procedure 3.853. But in
any event, the claim is meritless. Since many incarcerated defendants
raise the same claim, we explain why it lacks merit.
Petitioner was convicted in 2006 of multiple counts of sexual battery.
The facts of the underlying case are laid out in this court’s opinion in
Caballero v. State,
132 So. 3d 369
, 370 (Fla. 4th DCA 2014). Because the
sexual battery resulted in the birth of a child, the State used two paternity
tests to show that he was the father of the victim’s child, thus proving
sexual intercourse with the victim. A DNA expert testified and gave an
undisputed opinion that the defendant was the father.
In 2016, the State mailed the defendant a Brady 1 notice, informing him
that the Broward Sheriff’s Office Crime Lab inappropriately used
1 Brady v. Maryland,
373 U.S. 83
(1963).
Combined Probability of Inclusion (CPI) to calculate statistical probabilities
in complex mixture DNA cases. The notice stated that the inaccuracies
may have affected the defendant’s case, but only if CPI calculations were
used. A complex mixture is one that contains more than two contributors.
Most DNA analysis involves samples from either a single individual or a
simple mixture of two individuals. See Exec. Office of the President,
President's Council of Advisors on Sci. & Tech., Report to the President,
Forensic Science in Criminal Courts: Ensuring Scientific Validity of
Feature-Comparison Methods (2016).
The defendant then filed the instant habeas petition, alleging he is
illegally incarcerated because DNA evidence used to convict him was
faulty. The defendant has not established, however, that the DNA evidence
was faulty, nor does the State’s notice constitute newly discovered
evidence. The errors identified in the Brady notice apply only where the
CPI was used to analyze complex mixtures of DNA. The paternity tests do
not involve CPI, as they used DNA from only two persons – the petitioner
and the victim.
In order to prevail on a claim that the 2016 notice provided newly
discovered evidence, a defendant would have to show that the CPI applied
to the DNA evidence in the defendant’s case. The petitioner here did not
make that showing.
Petition denied.
WARNER, CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
2 |
4,638,789 | 2020-12-02 16:03:48.366963+00 | null | http://www.in.gov/judiciary/opinions/pdf/12022001rra.pdf | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Dec 02 2020, 8:35 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Kelly Cochran
Tracy Pappas
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Daniel S. Hamm, December 2, 2020
Appellant-Respondent, Court of Appeals Case No.
20A-JP-920
v. Appeal from the Hendricks Circuit
Court
Leah M. Brown, The Honorable Daniel F. Zielinski,
Appellee-Petitioner. Judge
Trial Court Cause No.
32C01-1012-JP-87
Altice, Judge.
Case Summary
[1] Daniel Hamm (Father) appeals the trial court’s order determining his monthly
payment on a child support arrearage, arguing that the trial court abused its
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 1 of 12
discretion by ordering him to pay a monthly amount that leaves him without
enough money for food and other necessary daily expenses.
[2] We reverse and remand.
Facts & Procedural History
[3] Father and Leah Brown (Mother) are the parents of one daughter (Child), born
in October 2000. In 2006, following a car accident, Father began receiving
$793 per month in Social Security disability benefits. 1 The monthly SSD
payments were and remain Father’s only source of income as the accident
rendered him unable to work. In July 2011, Hamm was found in contempt and
ordered to pay $55 per week in child support and an additional $10 per week
toward a $25,924.00 then-existing arrearage. Around September 2011, Father
began paying by income withholding order, with $281.70 per month being
withheld from his SSD check for the child support and arrearage payment.
[4] In June 2019, Father filed a pro se petition to terminate child support asserting
that Child was emancipated because she was eighteen years old, was not
enrolled in school, and was capable of supporting herself through employment.
In July 2019, Mother filed a verified petition for contempt alleging that Father
1
Social Security Disability Insurance (SSD) benefits are included in Indiana Child Support Guideline
3(A)(1)’s definition of “weekly gross income” for purposes of calculating child support. See also Child Supp.
G. 3(G)(5)(a)(ii) (“Social Security Disability benefits shall be included in the Weekly Gross Income” of the
noncustodial parent”). In contrast, benefits paid as Supplemental Security Income (SSI), which is a means-
tested public assistance program, are specifically excluded from weekly gross income. See Child Supp. G.
3(A)(1) and Commentary to Child Supp. G. 3(G). Father characterizes the benefits that he receives as
disability benefits, and we proceed on the assumption that his benefits are SSD and not SSI.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 2 of 12
had failed to comply with the July 2011 order and had an arrearage of over
$26,000.00.
[5] Following an August 28, 2019 hearing, the court issued an order finding Father
in contempt for failing to pay child support as ordered and determining his
current arrears to be $25,862.90. The court also ordered Father to provide his
2018 tax return and copies of his last six SSD payments, and it set the matter for
a “review/sanctions” hearing in October 2019. 2 Appellant’s Appendix at 12.
[6] The review hearing was reset and held on January 15, 2020. The parties agreed
that Child was emancipated as of October 2019 and that Father no longer owed
the $55 per week child support obligation. The parties also agreed that Father
had an arrearage of approximately $25,000. 3 The hearing was held to
determine how much Father should pay per month toward the arrearage.
[7] Father testified that after the $281.70 was withheld from his SSD check, he was
left with $511.30 per month, which figure increased to $524.30 per month in
January 2020 after a cost-of-living adjustment in benefits. With regard to
monthly expenses, Father stated that his lot rent was $350 per month and
utilities were approximately $200 per month, totaling $550 per month, which
was more than he had available after the child support and arrearage payment.
2
Father maintains in this appeal that he had been paying the court-ordered amount since 2012 and should
not have been found in contempt at the August 28, 2019 hearing, but concedes that he did not appeal the
contempt order and that a challenge to the contempt finding is thus no longer available.
3
An exact arrearage amount was not determined at the hearing but the parties agreed that they would later
calculate the outstanding amount.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 3 of 12
When asked how he had been managing to afford the $281 to date, Father
explained that from 2012 through 2015, his mother lived with him and helped
pay rent and other expenses. In 2016, he married, and his wife worked a full-
time job and helped with rent and other expenses, but she was in a car accident
in 2019 and, as of the date of the hearing, had not worked for eight months.
Father testified that the current $281 per month payment was an extreme
hardship, did not leave him with enough money to pay his bills, and that he and
his wife were about to be “kicked out” of their residence. Transcript at 20.
Father asked the trial court to reduce the amount being withheld to $100 per
month, the entirety of which would now apply to his arrearage.
[8] Mother testified that she wanted Father’s payment to remain at $281 per
month, but she acknowledged that Father was living on a small amount of
money and indicated she was willing to be “understanding” and “merciful” of
Father’s situation. Transcript at 27. She requested that, if any reduction be
ordered, Father’s monthly payment toward his arrearage be no less than $200,
testifying, “I [] have medical debt of [Child]’s that I’ve always had to pay on my
own” and “I still have those bills.” 4 Transcript at 27.
[9] The trial court issued an order that terminated Father’s $55 per week child
support obligation as agreed by the parties and reduced Father’s monthly
payment from $281.70 to $200 per month. The order stated in part:
4
Father acknowledged at the hearing that he was criminally charged and convicted for his conduct that
resulted in the car accident and his disability and that Child was in the car at the time. It is not clear from the
record whether the medical debt that Mother refers to is related to the car accident.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 4 of 12
6. Father request[s] the Court to modify his child support
obligation to $100 dollars per month. Should the Court grant
father’s request it would take nearly 21 years for any arrears to be
paid in full, assuming father paid $100 per month.
7. Father[’]s only income is his social security benefits, however,
he has been able to pay that amount via income withholding
order.
***
9. Mother request[s] father to pay $200 dollars per month
towards his arrearage.
10. The Court finds that mother’s position is more than
reasonable and therefore, modifies child support obligation by
father to $200 dollars per month to be paid via income
withholding order.
Appellant’s Appendix at 13-14.
[10] Father filed a motion to correct error, arguing, among other things, that the
court, by ordering Father to pay $200 per month, “essentially modified and
increased the prior arrearage payment of $10 per week to $46 per week[,]” and
“[i]t was error for the Court to order such a high amount of payment toward
the child support arrearage when [Father]’s income is limited by his disability.”
Id. at 18. Father reiterated that after payment of the $200 per month and his
$550 per month housing expenses, he was not left with funds for food, medical
care, and transportation. Father noted that the Commentary to Indiana Child
Support Guideline 3F provides that a child support payor should not be denied
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 5 of 12
a means of self-support at a subsistence level and, here, “the child support
payment order of $200 per month denies [Father] the means of self-support at a
subsistence level.” Id. at 20. Father requested, as he did at trial, that not more
than $100 be withheld from his SSD check.
[11] Mother filed a response maintaining that Father has consistently paid $281.70
per month for years and that his income has not changed. Additionally, she
argued that the court “in fact, reduced Father’s payment by $81.70 per month,
placing [him] in a better financial situation than he has found himself for the
last 9 years.” Id. at 23.
[12] The trial court denied Father’s motion, and he now appeals.
Discussion & Decision
[13] We generally review a trial court’s ruling on a motion to correct error for an
abuse of discretion. Hill v. Cox,
153 N.E.3d 283
, 286 (Ind. Ct. App. 2020). “An
abuse of discretion occurs when the trial court’s decision is against the logic and
effect of the facts and circumstances before the court or if the court has
misinterpreted the law.”
Id.
However, we apply a de novo standard of review
when the issue presented for review is a pure question of law.
Id.
[14] Determinations of child support obligations are likewise within a trial court’s
discretion, and we will not set such determinations aside unless they are clearly
erroneous. McGuire v. McGuire,
880 N.E.2d 297
, 301 (Ind. Ct. App. 2008). We
give due regard to the trial court’s ability to assess the credibility of witnesses.
Id.
We do not reweigh the evidence; rather we consider the evidence most
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 6 of 12
favorable to the judgment with all reasonable inferences drawn in favor of the
judgment.
Id.
[15] Before addressing the merits of Father’s appeal, we observe that Mother did not
file an appellee’s brief. In such a situation, we do not undertake the burden of
developing arguments for her, and we apply a less stringent standard of review,
that is, we may reverse if the appellant establishes prima facie error. Turner v.
Turner,
983 N.E.2d 643
, 646 (Ind. Ct. App. 2013). This rule was established so
that we might be relieved of the burden of controverting the arguments
advanced in favor of reversal where that burden properly rests with the
appellee. Ward v. Ward,
763 N.E.2d 480
, 481 (Ind. Ct. App. 2002). In this
context, prima facie error is defined as error “at first sight, on first appearance,
or on the face of it.” Orlich v. Orlich,
859 N.E.2d 671
, 673 (Ind. Ct. App. 2006).
As we have recognized, “This standard, however, ‘does not relieve us of our
obligation to correctly apply the law to the facts in the record in order to
determine whether reversal is required.’” WindGate Properties, LLC v. Sanders,
93 N.E.3d 809
, 813 (Ind. Ct. App. 2018) (quoting Wharton v. State,
42 N.E.3d 539
, 541 (Ind. Ct. App. 2015)).
[16] Father maintains the trial court’s order “deprived [him] of his ability to support
himself a minimum subsistence level” and should be reversed and remanded.
Appellant’s Brief at 7, 10 (emphasis in original). In support, Father relies on, in
part, McGill v. McGill,
801 N.E.2d 1249
, 1253 (Ind. Ct. App. 2004).
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 7 of 12
[17] In McGill, the mother and custodial parent (Jayne) filed a petition for contempt
and for modification of support payments, and the non-custodial father
(Walter), who was disabled and receiving monthly benefits of $276 in SSI and
$296 in SSD (for a total of $572), petitioned to lower his support payments.
The trial court modified the existing $25 per week support order, ordering that
Walter pay $20 per week in current support, plus an additional $5 per week
toward a $9110 child support arrearage, for a weekly payment of $25. Upon
Walter’s motion to correct error, the trial court ordered him to pay $15.57 in
child support plus $5 toward the arrearage, for a payment of $20.57 per week.
Walter appealed, and Jayne did not file an appellee’s brief.
[18] Walter agreed that he should pay child support but argued the amount ordered
was an abuse of discretion. He presented evidence that his trailer payment, lot
rent, utilities, and the $20 support payment totaled $500 per month, leaving him
with $72 for food, toiletries, and other basic needs. The McGill court
determined that Walter made a prima facie showing that the $20.57 per week
payment was an abuse of discretion and remanded with instruction to set his
support obligation “at a level that will not deprive him of self-support at a
subsistence level.”
Id. at 1253
.
[19] We recognize that the court, here, faced the difficult and unenviable task of
determining the proper amount that Father, who had low income and was not
able to work, should pay to Mother on his undisputed $25,000 arrearage that
accumulated when Father did not pay child support for approximately ten
years. Although the court decreased the overall monthly withholding from his
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 8 of 12
SSD benefit by $81.70, we find that Father has presented a prima facie case that
the payment of $200 per month left him without enough money to pay his basic
needs.
[20] Specifically, it is undisputed that Father received approximately $800 per
month in SSD, which after the $200 payment toward arrearage, would leave
Father with approximately $600 on which to live. He testified that his lot rent
and utilities totaled approximately $550 per month, leaving him around $50 per
month for food, transportation, and medical expenses. From 2012 to 2015, his
mother lived with him and contributed to payment of expenses, and from 2016
to 2019, his wife worked a full-time job and contributed to payment of
expenses. His wife was injured in a car accident in 2019, however, and has not
worked since that time. Father testified that they were going to get “kicked
out” of their residence. Transcript at 20.
[21] Given our standard of review in this case, we conclude that Father has made a
prima facie showing that the court’s order that he pay $200 per month denied
him the means of self-support at a subsistence level and warrants reversal.
While Father requests that the trial court order him to pay $100 per month, we
observe that there was no evidence at the hearing as to whether Father’s wife
will be able to work in the future or whether she has applied (or would be
applying) for any social security, worker’s compensation, or other benefits or
whether she may be receiving insurance or other compensation from the
accident, which could contribute to the household expenses. There was no
evidence presented whether Father might be concurrently eligible for SSI, food
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 9 of 12
stamps, or other assistance. We instruct that, on remand, the trial court is not
required to order payment in the amount of $100 per month as requested by
Father and in its discretion may hold a hearing to accept additional evidence on
the matter.
[22] Judgment reversed and remanded.
May, J., concurs.
Riley, J., concurs in part and dissents in part with opinion.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 10 of 12
IN THE
COURT OF APPEALS OF INDIANA
Daniel S. Hamm, Court of Appeals Case No.
20A-JP-920
Appellant-Respondent,
v.
Leah M. Brown,
Appellee-Petitioner
Riley, Judge concurring in part and dissenting in part
[23] I concur with the majority’s conclusion that Father has made a prima facie
showing that the trial court abused its discretion by ordering him to pay $200
per month toward his arrearage. However, I respectfully dissent from the
majority’s conclusion that remand is warranted in order for the trial court to
receive additional information regarding Father’s wife’s future earning
capabilities, her possible eligibility for government assistance, receipt of
insurance or compensation resulting from her car accident, and Father’s
eligibility for additional government benefits. Income for purposes of
determining child support is based on actual income, not future income. See
Ind. Child Support Guideline 3(A)(1) (“For purposes of these Guidelines,
“weekly gross income” is defined as actual weekly gross income . . .”). At the
January 15, 2020, hearing, Father presented evidence regarding his and his
wife’s then-current income and expenses. This evidence should be the basis for
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 11 of 12
computing Father’s arrears payment, and the evidence presented by Father
supported his request that his arrears payment be reduced to $100. For these
reasons, I respectfully dissent.
Court of Appeals of Indiana | Memorandum Decision 20A-JP-920 | December 2, 2020 Page 12 of 12 |
4,638,790 | 2020-12-02 16:03:49.039031+00 | null | http://www.in.gov/judiciary/opinions/pdf/12022002rra.pdf | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 02 2020, 8:44 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Brian Woodward Curtis T. Hill, Jr.
Crown Point, Indiana Attorney General of Indiana
Carah J. Austin
Deputy Attorney General
Angela N. Sanchez
Assistant Section Chief
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brandon McFadden, December 2, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-1221
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff. Murray, Judge
The Honorable Michael N.
Pagano, Pro Tempore
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 1 of 11
Trial Court Cause No.
45G02-1908-F1-39
Altice, Judge.
Case Summary
[1] Following his guilty plea to Level 5 felony domestic battery by means of a
deadly weapon, Brandon McFadden appeals his sentence of four and one-half
years, with one year suspended, asserting that the trial court abused its
discretion by considering improper aggravators.
[2] We affirm.
Facts & Procedural History
[3] At 9:19 p.m. on August 19, 2019, police were dispatched to a residence in Gary
on a report of shots fired. Upon entering the residence, officers made contact
with a female victim, T.N., who had suffered gunshot abrasions to her arm and
thigh. T.N. told officers that she and McFadden had been in a relationship but
they ended it the week prior, he came to her home uninvited, they argued first
at the front door, and then she stepped out and they had a physical altercation.
She described to officers that she ran back into the house and, as she was
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 2 of 11
closing the door, McFadden began shooting through it. T.N. was grazed by
two or more bullets.
[4] On August 21, 2019, the State charged McFadden with seven counts: Level 1
felony attempted murder; Level 3 felony aggravated battery; Level 5 felony
domestic battery by means of a deadly weapon; Level 5 felony domestic battery
resulting in serious bodily injury; Level 6 felony domestic battery resulting in
moderate bodily injury; Level 6 felony pointing a firearm; and Class A
misdemeanor domestic battery.
[5] At a March 19, 2020 guilty plea hearing, McFadden and the State filed a plea
agreement in which McFadden agreed to plead guilty to Level 5 felony
domestic battery by means of a deadly weapon (Count III), and the State agreed
to dismiss all remaining charges. Sentencing was left to the court’s discretion.
The parties attached to the agreement a written Stipulated Factual Basis, which
stated, in part: McFadden went to T.N’s home uninvited, he and T.N. had
been in a prior intimate partner/dating relationship; and he was angry and fired
multiple shots from his handgun through the front door where he knew T.N.
was standing, grazing her with bullets and causing pain and injury to her arm
and leg. Appellant’s Appendix at 37.
[6] The court took McFadden’s guilty plea under advisement, ordering the
preparation of a presentence investigation report (PSI) and setting the matter for
a sentencing hearing. On April 13, 2020, the State filed a PSI to which the
probable cause affidavit was attached.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 3 of 11
[7] At the June 4, 2020 sentencing hearing, the State, without objection, referred to
both the contents of the PSI and the victim’s impact statement 1 and asserted
that it was “a matter of sheer luck” that T.N. suffered only graze wounds given
that McFadden fired multiple shots at her as she closed the door. Transcript at
20. The State argued the existence of the following aggravators: (1) the harm
was greater than necessary to prove the elements of the offense, as domestic
battery with a deadly weapon does not require any injury; and (2) McFadden’s
history of delinquent behavior, as he had a prior juvenile allegation and had a
pending Level 6 felony charge. The State noted that McFadden “was getting a
significant benefit” through the plea agreement by avoiding a Level 1 felony
conviction and asked for a sentence of five years in the Indiana Department of
Correction (DOC) followed by one year of probation. Id. at 20-21.
[8] Defense counsel argued that McFadden had no convictions and “little criminal
history,” was nineteen years old at the time of sentencing, had family support,
and had a job available to return to upon release. Id. at 21. Counsel noted that
McFadden had been in jail for almost a year and suggested that he had learned
his lesson and was grateful that T.N. “was not injured.” Id. at 22. McFadden
requested that the court impose the advisory three-year sentence with two years
suspended.
1
The victim’s impact statement is not included in the record before us.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 4 of 11
[9] McFadden gave a statement apologizing to T.N. “for any mental and physical
pain that she has endured” and to his family for his “careless decision.” Id. at
23. He stated that he “didn’t mean for the situation to occur like it did” and
maintained that he refused to be a product of his environment and was not
going to “fall victim to this side of the justice system.” Id. at 23-24. McFadden
planned to re-enroll in a GED program and return to work.
[10] The court accepted McFadden’s guilty plea and, before imposing a sentence,
noted that it had considered the PSI and that it had received and read the
victim’s impact statement, which defense counsel acknowledged having
received from the State. The court identified as aggravating that the damages
suffered by the victim were significant and greater than the elements required to
prove the case and that the nature and circumstances of the situation indicated
some degree of premeditation. The court also identified as an aggravating
circumstance trauma to the victim, which the court viewed as “relatively
significant” with the victim indicating in her victim impact statement that she
suffered from nightmares and seizures and the incident delayed her entry into
college. Id. at 26. The court also identified mitigators, including that
McFadden was eighteen years old at the time of the incident (as was the victim)
and that McFadden admitted guilt and entered into a plea agreement. The
court found that the aggravators outweighed the mitigators and sentenced
McFadden to four and one-half years in the DOC with one year suspended to
probation.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 5 of 11
[11] The court entered a written sentencing statement the same day, consistent with
but more detailed than its oral statement. The court identified the following
four aggravating factors:
1. The harm, injury, loss or damage suffered by the victim of the
offense was significant and greater than the elements necessary to
prove the commission of the offense.
2. The defendant has a criminal history that includes one juvenile
case that was dismissed and a pending felony case under Cause
45008-1904-F6-000880.
3. The Court finds the nature and circumstances of the crime to
be a significant aggravating factor in that the offense was
premediated beyond the “heat of the moment,” and the age of
the victim.
4. The trauma to the victim that includes nightmares and
seizures. The trauma sustained by the victim also delayed her
attendance to college.
Appellant’s Appendix at 71. After identifying several mitigators – that McFadden
was likely to respond affirmatively to probation or short-term imprisonment,
that he admitted his guilt and saved the expense of trial, and that he was only
eighteen years old at the time of commission of the offense – the court found
that the aggravators outweighed the mitigators and imposed the sentence.
McFadden now appeals.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 6 of 11
Discussion & Decision
[12] It is well settled that “sentencing decisions rest within the sound discretion of
the trial court and are reviewed on appeal only for an abuse of discretion.”
Anglemyer v. State,
868 N.E.2d 482
, 490 (Ind. 2007), clarified on reh’g
875 N.E.2d 218
. An abuse of discretion occurs if the trial court’s decision is “clearly against
the logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom.”
Id.
The
trial court can abuse its discretion by: (1) failing to issue a sentencing statement,
(2) finding aggravating or mitigating factors that are not supported by the
record, (3) omitting factors that are clearly supported by the record and
advanced for consideration, (4) or considering reasons that are improper as a
matter of law. See
id. at 490-91
. The proper remedy is remand if we cannot say
with confidence that the trial court would have imposed the same sentence had
it properly considered reasons that enjoy support in the record.
Id. at 491
.
Even if a trial court improperly applies an aggravator, a sentence enhancement
may be upheld when there is another valid aggravating circumstance. Edrington
v. State,
909 N.E.2d 1093
, 1097 (Ind. Ct. App. 2009), trans. denied; see also
Williams v. State,
891 N.E.2d 621
, 633 (Ind. Ct. App. 2008) (“A single
aggravator factor is sufficient to support an enhanced sentence.”).
[13] For his Level 5 felony conviction, McFadden faced a sentencing range of one to
six years, with the advisory being three years.
Ind. Code § 35-50-2-6
. The plea
agreement left sentencing open to the trial court’s discretion. McFadden
challenges the sentence of four and one-half years, with one suspended, arguing
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 7 of 11
that “the trial court abused its discretion by using improper aggravators to
enhance McFadden’s sentence[.]” Appellant’s Brief at 4. We address the four
challenged aggravators in turn.
[14] Initially, McFadden contends there was no evidence in the record to
substantiate the finding that the harm or injury suffered by the victim was
significant and greater than the elements necessary to prove the offense. We
disagree. It is undisputed that T.N. suffered graze wounds to her leg and arm
causing her physical pain. Physical injury is not required to prove the elements
of domestic battery by means of a deadly weapon.
Ind. Code § 35-42-2
-
1.3(a)(1). Thus, the record supports the court’s finding that the harm or injury
suffered was greater than the necessary elements of the offense. Accordingly,
we find no error with the trial court’s reliance on this aggravator.
[15] McFadden next alleges that the trial court abused its discretion when it
aggravated the sentence based upon the impact to the victim, arguing that
emotional and physical effects are inappropriate aggravators unless they are
greater than those usually associated with the crime. He maintains that, here,
“[t]here was no evidence presented that the victim suffered any substantial
physical injury which would cause her seizures, or any other psychological
trauma which exceeded that normally associated with crimes such as this.”
Appellant’s Brief at 7. To the extent that McFadden suggests that a “substantial
physical injury” was required to have caused her seizures, we reject that claim.
Id.
Whether caused by physical or by emotional injury, T.N. reported to the
court that she was suffering seizures (and nightmares) after the incident where
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 8 of 11
McFadden shot at her multiple times. The trial court did not abuse its
discretion when it considered the physical and emotional impact on T.N.
[16] McFadden also asserts that the trial court abused its discretion when it
considered his criminal history to be an aggravator because it consisted of a
dismissed juvenile case and a pending felony but no convictions, arguing,
“McFadden had nothing more than a bare record of arrest.” Appellant’s Brief at
10. As this court has recognized,
[a] record of arrest, without more, does not establish the
historical fact that a defendant committed a criminal offense and
may not be properly considered as evidence of criminal history.
However, a record of brushes with the law . . . may reveal that a
defendant has not been deterred even after having been subject to
the police authority of the State. Such information may be
relevant to the trial court’s assessment of the defendant’s
character in terms of the risk that he will commit another crime.
Hape v. State,
903 N.E.2d 977
, 1001 (Ind. Ct. App. 2009) (internal quotations
and citation omitted), trans. denied.
[17] Here, McFadden was eighteen at the time of the instant offense and by then
had already faced a 2017 juvenile allegation of unauthorized entry of a motor
vehicle, which was ultimately dismissed. In April 2019, McFadden was
charged with Class 6 felony auto theft (related to theft of a component part of
the vehicle) and such charge was pending when McFadden committed the
present offense in August 2019. The trial court did not abuse its discretion
when it considered this information when sentencing McFadden. See Hape, 903
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 9 of 11
N.E.2d at 1001 (no abuse of discretion in considering defendant’s pending
charges as an aggravator).
[18] Lastly, McFadden argues that the trial court abused its discretion when it found
that the nature and circumstances of the crime reflected that the offense was
premeditated and beyond the “heat of the moment.” 2 Appellant’s Appendix at
71. In our view, the record reflects a degree of premeditation. McFadden came
to T.N.’s home, uninvited. T.N. and McFadden were no longer dating, their
relationship having ended a week prior. He brought with him a loaded
weapon. They first argued at the front door and then on the porch, with
McFadden firing his gun as T.N. was retreating into the home. Given these
circumstances, we cannot say that the trial court’s finding of premeditation was
an abuse of discretion.
[19] McFadden has failed to demonstrate that the trial court abused its discretion in
its consideration of aggravating circumstances.
2
In challenging this aggravator, McFadden asserts that it was error for the trial court, when addressing the
nature and circumstances, to rely, in part, on facts as provided in the probable cause affidavit. He argues that
it was improper for the court to do so because McFadden “neither adopted those facts nor relied upon them”,
and, rather, relied solely on the Stipulated Factual Basis. Reply Brief at 6. We reject his claim, as
Ind. Code § 35-38-1-8
(a) provides that “a defendant convicted of a felony may not be sentenced before a written
presentence report is prepared by a probation officer and considered by the sentencing court[,]” and, here, the
probable cause affidavit was attached to the PSI, which the trial court expressly stated that it considered in its
entirety. Moreover, even if we agreed with McFadden and found that the trial court improperly relied on
facts in the probable cause affidavit when determining that the crime showed premeditation, we find no
reversible error because the trial court properly relied on other valid aggravators, and we can say with
confidence that the trial court would have imposed the same sentence in light of the remaining aggravators
and the mitigators.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 10 of 11
[20] Judgment affirmed.
Riley, J. and May, J, concur.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-1221 | December 2, 2020 Page 11 of 11 |
4,638,791 | 2020-12-02 16:03:49.619706+00 | null | http://www.in.gov/judiciary/opinions/pdf/12022001tac.pdf | MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 02 2020, 8:55 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Bruce W. Graham Curtis T. Hill, Jr.
Graham Law Firm P.C. Attorney General
Lafayette, Indiana Ellen H. Meilaender
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Alan Ocampo, December 2, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-584
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Randy J. Williams,
Appellee-Plaintiff Judge
Trial Court Cause No.
79D01-1912-F1-13
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 1 of 9
Case Summary
[1] After a trial, the jury found Alan Ocampo guilty of numerous offenses,
including level 5 felony battery by means of a deadly weapon and level 5 felony
battery resulting in serious bodily injury. The trial court found that Ocampo
was eligible for a sentencing enhancement due to his use of a firearm in the
commission of a felony. At the sentencing hearing, the trial court vacated the
conviction for battery by means of a deadly weapon on double jeopardy
grounds and enhanced the sentence on the conviction for battery resulting in
serious bodily injury by ten years. Ocampo now appeals, arguing that the trial
court should have vacated the other battery conviction instead, and that this
would require vacation of the sentencing enhancement. He also argues that the
trial court committed fundamental error in instructing the jury. We find no
merit in Ocampo’s arguments and affirm his convictions and sentence, but we
remand for correction of technical errors in the sentencing order.
Facts and Procedural History
[2] Between March and July 2018, Brooklyn Frye was romantically involved with
Taiwon Evans. Frye then started dating Ocampo. In February 2019, they were
“going through a hard time[.]” Tr. Vol. 2 at 122. On the night of February 23,
Frye and Evans were talking in the front seat of Evans’s Pontiac sedan, which
was parked facing the street in the driveway of Frye’s sister’s boyfriend’s house
in Lafayette. Ocampo pulled into the driveway in his Camaro, got out of the
vehicle, and started arguing with Frye, who was in the Pontiac’s passenger seat.
Frye got out of the Pontiac and started walking toward the house. Ocampo
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 2 of 9
went back to his Camaro and retrieved a silver Taurus revolver. He fired a shot
into the air, approached the passenger side of the Pontiac, and fired another
shot into the car. The bullet penetrated the center armrest, struck Evans in the
right hip, fractured his femur, and lodged in his left hip. Evans, who was
unarmed, got out of the car and ran to the nearby home of a friend.
[3] A man who lived across the street from the shooting heard the gunshots and
looked out the window. He saw Ocampo holding the revolver and heard him
yell, “[T]hat’s what you get bitch.” Id. at 149. Ocampo got into the Pontiac
and crashed into the man’s mailbox. He then returned to the driveway. Frye’s
sister, who was outside her boyfriend’s house, saw Ocampo holding the
revolver. Ocampo got into his Camaro and drove away.
[4] A police officer responding to a call about the shooting saw the Camaro and
attempted to initiate a traffic stop. Ocampo continued driving, and during the
pursuit the officer “observed a silver object tumble off the car and into the
roadway.” Id. at 212. Ocampo eventually stopped his vehicle and was taken
into custody by the pursuing officer and two other officers. Ocampo told one of
the officers “that that guy […] shot first” and “broke his taillight.” Id. at 214.
At police headquarters, during an interview with another officer, Ocampo
claimed that Evans “got into a physical altercation with him, which resulted in
him being pushed up against the back of the [Camaro], which resulted in […]
the [taillight] being broken.” Tr. Vol. 3 at 88. The taillight was not broken, and
there was no “disruption” of the dirt covering the back of the Camaro that “one
would expect to see” after a “struggle[.]” Id. at 89.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 3 of 9
[5] Inside the Camaro, officers found a black Ruger handgun that had been
reported stolen in Indianapolis. Ocampo’s DNA was found on the handgun,
and Evans was excluded as a contributor to the second DNA profile found on
the weapon. The day after the shooting, Ocampo’s Taurus revolver was found
on the road where it had fallen during the police pursuit. The cylinder
contained three live rounds and two spent rounds. Ocampo’s DNA was found
on the revolver, and Evans was excluded as a contributor to the second DNA
profile found on the weapon. On the rear floorboard of Evans’s Pontiac, police
found a fragment of a bullet that was determined to have been fired from
Ocampo’s Taurus revolver.
[6] The State charged Ocampo with level 1 felony attempted murder, level 5 felony
battery by means of a deadly weapon, level 5 felony battery resulting in serious
bodily injury, level 5 felony criminal recklessness, two counts of level 6 felony
pointing a firearm (at Evans and Frye’s sister), level 6 felony resisting law
enforcement, level 6 felony theft, level 6 felony obstruction of justice, class B
misdemeanor unauthorized entry of a motor vehicle, class A infraction driving
while suspended, and a sentencing enhancement for using a firearm during the
commission of a felony. At trial, Ocampo claimed self-defense but did not
testify. The trial court entered a directed verdict on the pointing-a-firearm
count as to Frye’s sister. The jury found Ocampo not guilty of attempted
murder and theft and guilty of the remaining charges; the court entered
judgment of conviction on those counts. Ocampo waived jury trial for the
enhancement phase; the court found that he had a prior driving-while-
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 4 of 9
suspended conviction, which elevated his class A infraction to a class A
misdemeanor, and also found that he used a firearm in the commission of a
felony that resulted in death or serious bodily injury, which made him eligible
for the sentencing enhancement.
[7] At the sentencing hearing, the trial court vacated the convictions for battery by
means of a deadly weapon, criminal recklessness, and pointing a firearm due to
double jeopardy concerns. The court imposed an aggregate sentence of
nineteen years, including five years for the remaining battery conviction plus
ten years for the firearm enhancement. Ocampo now appeals. Additional facts
will be provided below.
Discussion and Decision
Section 1 – Ocampo has failed to demonstrate that the trial
court erred in vacating his conviction for battery by means of a
deadly weapon, but we agree with the State that the
sentencing order should be corrected.
[8] Ocampo’s sentencing enhancement is based on Indiana Code Section 35-50-2-
11, which reads in pertinent part as follows:
(b) As used in this section, “offense” means:
(1) a felony under IC 35-42 that resulted in death or serious
bodily injury;
….
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 5 of 9
(d) The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed
an offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense.
….
(g) If the jury (if the hearing is by jury) or the court (if the hearing
is to the court alone) finds that the state has proved beyond a
reasonable doubt that the person knowingly or intentionally used
a firearm in the commission of the offense under subsection (d),
the court may sentence the person to an additional fixed term of
imprisonment of between five (5) years and twenty (20) years.
[9] At the sentencing hearing, a consensus was reached that one of Ocampo’s
battery convictions had to be vacated due to double jeopardy concerns and that
the sentencing enhancement could not be applied to the conviction for battery
by means of a deadly weapon because it would result in an impermissible
“double enhancement.” See, e.g., Nicoson v. State,
938 N.E.2d 660
, 662-65 (Ind.
2010) (addressing double-enhancement claim). Ocampo does not challenge this
determination on appeal, and we express no opinion on it. He does contend
that because Indiana Code Section 35-50-2-11 does not specify which battery
conviction should be vacated, we should apply “the Rule of Lenity[,]” which
“should result in the conclusion” that the conviction for battery resulting in
serious bodily injury should have been vacated instead, and thus the sentencing
enhancement should also be vacated. Appellant’s Br. at 19-20.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 6 of 9
[10] We disagree. The rule of lenity applies to ambiguous statutes, Cook v. State,
143 N.E.3d 1018
, 1023 (Ind. Ct. App. 2020), trans. denied, and Indiana Code
Section 35-50-2-11 is merely silent, not ambiguous, on this point; consequently,
the rule is inapplicable. 1 It is well settled that where, as here, a double jeopardy
violation may not be remedied by reducing either conviction to a less serious
form of the same offense, the conviction with the less severe penal
consequences must be vacated. Phillips v. State,
25 N.E.3d 1284
, 1292 (Ind. Ct.
App. 2015). In this case, the conviction with the less severe penal consequences
is the one for battery by means of a deadly weapon, assuming (as Ocampo
does) that it is not subject to the sentencing enhancement. Ocampo has failed
to demonstrate that the trial court erred in vacating that conviction. 2
[11] The State points out that the sentencing order incorrectly labels the firearm
enhancement as a “Habitual Offender Sentencing Enhancement” that runs
“consecutive” to the battery sentence. Appealed Order at 3; cf. Cooper v. State,
940 N.E.2d 1210
, 1215 (Ind. Ct. App. 2011) (explaining that a firearm
enhancement is an additional penalty and not a separate offense), trans. denied.
The State suggests, and we agree, that remand is “appropriate to correct these
1
The rule of lenity “requires interpreting [a criminal] statute in the defendant’s favor as far as the language
can reasonably support.” Cook, 143 N.E.3d at 1023. Because Indiana Code Section 35-50-2-11 says nothing
about the issue at hand, there is nothing to interpret.
2
The double-jeopardy analysis at the sentencing hearing and in Ocampo’s appellate brief, as well as in
Phillips, is based either implicitly or explicitly on Richardson v. State,
717 N.E.2d 32
(Ind. 1998), which was
recently overruled in Wadle v. State,
151 N.E.3d 227
(Ind. 2020). Wadle was issued almost three weeks before
Ocampo filed his brief, but he does not cite it and thus does not argue that it would apply retroactively and
require a different result.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 7 of 9
technical errors, although they do not have any impact on the length or validity
of [Ocampo’s] sentence.” Appellee’s Br. at 7 n.2.
Section 2 – Ocampo has failed to demonstrate that the trial
court committed fundamental error in instructing the jury.
[12] At trial, the court gave the following final instruction to the jury:
The flight of a person immediately after the commission of the
crime with which he is charged, if there was such flight, is a
circumstance which may be considered by you in connection
with all the other evidence to aid you in determining his guilt or
innocence.
Tr. Vol. 3 at 153. Ocampo did not object to this instruction. On appeal, he
contends that the trial court erred in giving it. Because he failed to object at
trial, he must establish fundamental error, that is, an error that either “makes a
fair trial impossible or constitutes clearly blatant violations of basic and
elementary principles of due process presenting an undeniable and substantial
potential for harm.” Clark v. State,
915 N.E.2d 126
, 131 (Ind. 2009).
“Fundamental error will be found only in egregious circumstances.” Harbert v.
State,
51 N.E.3d 267
, 277 (Ind. Ct. App. 2016), trans. denied.
[13] Those circumstances are not present here. In Dill v. State, our supreme court
held that a similar instruction regarding flight should not have been given
because it was confusing, unduly emphasized specific evidence, and was
misleading.
741 N.E.2d 1230
, 1233 (Ind. 2001). But the court observed that
“[e]rrors in the giving or refusing of instructions are harmless where a
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 8 of 9
conviction is clearly sustained by the evidence and the jury could not properly
have found otherwise.”
Id.
Here, the State presented overwhelming evidence
that Ocampo committed the crimes that he was ultimately convicted of; the
only question was whether he acted in self-defense.3 Ocampo told police that
Evans shot at him first, fought with him at the rear of the Camaro, and broke
the taillight; no evidence supports this claim. The jury instruction did not make
a fair trial impossible or blatantly violate due process principles. Therefore, we
affirm Ocampo’s convictions and sentence.
[14] Affirmed and remanded.
Robb, J., and Brown, J., concur.
3
Ocampo’s counsel conceded as much in his closing argument. Tr. Vol. 3 at 120-33.
Court of Appeals of Indiana | Memorandum Decision 20A-CR-584 | December 2, 2020 Page 9 of 9 |
4,638,792 | 2020-12-02 16:12:26.613415+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2020/2020-Ohio-5494.pdf | [Cite as State v. Pitts,
2020-Ohio-5494
.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190418
TRIAL NO. 18CRB-24765
Plaintiff-Appellee, :
vs. :
GERRY PITTS, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: December 2, 2020
Andrew Garth, Interim City Solicitor, William T. Horsley, Chief Prosecuting
Attorney, and Scott Crowley, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson,
Assistant Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} On September 6, 2018, defendant-appellant Gerry Pitts was charged
with assault in violation of R.C. 2903.13. At his jury trial, he asserted a claim of
defense of another—specifically his little brother “Z.” He was found guilty on April 4,
2019, and subsequently sentenced. He has appealed his conviction, arguing in two
assignments of error that (1) the trial court erred in applying the wrong version of
Ohio’s self-defense law, and (2) his conviction was against the manifest weight of the
evidence.
{¶2} For the reasons discussed below, we sustain the first assignment of
error and remand the cause for a new trial. Our disposition of the first assignment of
error renders the second assignment of error moot.
Factual Background
{¶3} William Turner testified that on September 6, 2018, he was driving
down Thompson Street in Hamilton County, Ohio, when he saw a small child in the
street. A passing driver told Turner that he thought the child lived in the “yellow
house.” Turner put the child in his truck and circled the block looking for a yellow
house, but did not see one. He returned to his house where he told his fiancée,
Cassandra, about the child. He came back outside with Cassandra and called 911 on
his cell phone.
{¶4} While he was on the phone with 911, Turner saw Pitts run out of his
house and into the middle of the street. Pitts yelled “that’s my little brother!” and
ran up to Turner. Turner testified that Pitts chest bumped him twice. The child, who
turned out to be Pitts’s brother, Z, had been sitting in the driver’s seat, but moved to
2
OHIO FIRST DISTRICT COURT OF APPEALS
the passenger seat, away from Turner and Pitts, when Pitts ran toward him. Turner
told Pitts to go get his mother, so Pitts ran down the street, waved down his family,
and they all ran up the street to where Turner was standing next to his truck. Turner
testified that Pitts chest bumped him again, causing him to disconnect the 911 call.
Pitts’s mother, Gwen, pulled Z out of the truck. As Turner was trying to explain to
her what happened, Pitts punched him from behind. Turner called 911 again, and
the police came.
{¶5} Cassandra’s testimony corroborated Turner’s. She testified that
Turner was talking to Gwen when Pitts came around behind Turner and punched
him in the face.
{¶6} Pitts testified that a neighbor came to the house and told his sister that
she saw a man in a pickup truck pick up Z and drive away. Pitts testified that he
overheard the conversation, and, fearing that Z had been kidnapped, ran outside. He
heard Z crying, saw him in a pickup truck up the street, and ran toward where Turner
was standing next to the truck. Pitts testified that he told Turner that Z was his
brother. He stated that he tried to get to Z, but Turner kept pushing him away. Pitts
ran back home and told Gwen that he had found Z. Then, he, Gwen, and his sister
Aaliyah, ran back up the street to Turner’s truck. Pitts testified that Turner pushed
him away once again. Pitts claimed he then punched Turner out of fear for Z’s safety.
Aaliyah testified that as Pitts was trying to pull Z out of the truck, Turner pushed
Pitts, and then Pitts punched him.
{¶7} The state played audio recordings of Turner’s two 911 calls, but the
recordings do not shed much light on how the confrontation occurred.
3
OHIO FIRST DISTRICT COURT OF APPEALS
First Assignment of Error
{¶8} In his first assignment of error, Pitts contends that the trial court
should have applied the newly-enacted version of R.C. 2901.05(B)(1) to his
affirmative defense of defense of another.
{¶9} Whether the trial court erred in failing to apply the new law to Pitts’s
trial is a legal issue we review de novo. See State v. Consilio,
114 Ohio St.3d 295
,
2007-Ohio-4163
,
871 N.E.2d 1167
, ¶ 8.
{¶10} The General Assembly altered Ohio’s self-defense, defense of another,
and defense of residence statute when it enacted 2017 Am.Sub.H.B. No. 228 (“H.B.
228”), which amended R.C. 2901.05(B)(1). Prior to March 28, 2019, those defenses
were affirmative defenses that the defendant had the burden of proving by a
preponderance of the evidence. Effective March 28, 2019, the burden of proof was
realigned. R.C. 2901.05 (B)(1), as amended by H.B. 228, states:
A person is allowed to act in self-defense, defense of another, or defense
of that person’s residence. If, at the trial of a person who is accused of an
offense that involved the person’s use of force against another, there is
evidence presented that tends to support that the accused person used
the force in self-defense, defense of another, or defense of that person’s
residence, the prosecution must prove beyond a reasonable doubt that
the accused person did not use the force in self-defense, defense of
another, or defense of that person’s residence, as the case may be.
The General Assembly amended R.C. 2901.05 to shift the burden of persuasion: “the
prosecution [must] disprove at least one of the elements of self-defense beyond a
reasonable doubt.” State v. Williams, 1st Dist. Hamilton No. C-190380, 2020-Ohio-
4
OHIO FIRST DISTRICT COURT OF APPEALS
5245, ¶ 7, quoting State v. Petway,
2020-Ohio-3848
, ___N.E.3d___, ¶ 38 (11th
Dist.). “However, the amended statute does not affect the burden of production—it
remains with the defendant. Just as before, subsection (A) imposes upon the
defendant ‘[t]he burden of going forward with the evidence of an affirmative
defense.’ ” Williams at ¶ 7, quoting R.C. 2901.05(A).
{¶11} The state argues that because R.C. 2901.05(B)(1) does not expressly
include retroactive language, the new law cannot apply to conduct that occurred
before its effective date. The state contends that absent a clear declaration of
retroactivity, the statute only applies prospectively. See Van Fossen v. Babcock &
Wilcox Co.,
36 Ohio St.3d 100
, 106,
522 N.E.2d 489
(1988); R.C. 1.48.
{¶12} Multiple appellate districts have held that H.B. 228 does not apply in
cases where the commission of the offense and the trial occurred before March 28,
2019. See State v. Brooks, 5th Dist. Richland No. 2019 CA 0104,
2020-Ohio-4123
, ¶
39 (listing cases from other districts).
{¶13} As of the date of this opinion, only the Second, Fifth, Eleventh, and
Twelfth Districts have decided the issue presented in this case: whether the burden-
shifting changes made to R.C. 2901.05 apply to offenses that were committed before
the effective date of the statute, but tried after the effective date. The districts are
split.
{¶14} On June 1, 2020, the Twelfth District held that no retroactivity
analysis is necessary because H.B. 228 is not a retroactive statute—it only “applies
prospectively to trials.” (Emphasis in original.) State v. Gloff,
2020-Ohio-3143
,
___N.E.3d___, ¶ 23 (12th Dist.). In Gloff, the court found that because the
defendant’s trial lasted from March 26, 2019, to March 29, 2019, he was entitled to a
5
OHIO FIRST DISTRICT COURT OF APPEALS
self-defense jury instruction that complied with H.B. 228. Id. at ¶ 29. The court
determined that H.B. 228 is not a retroactive law because it “focuses on when the
trial is held, not when the offense was committed.” Id. at ¶ 22. The court held, “The
pertinent amendment does not concern the conduct giving rise to the offense but
relates to the applicable burden of proof for the affirmative defense of self-defense.”
Id. at ¶ 23.
{¶15} On July 20, 2020, the Twelfth District reaffirmed its holding in Gloff.
State v. Lewis,
2020-Ohio-3762
, ___N.E.3d___, ¶ 26 (12th Dist.).
{¶16} On August 18, 2020, the Fifth District disagreed with the Twelfth
District’s holdings in Gloff and Lewis. It found that the “at the trial” language was
not a “directive regarding the applicability of the statute, rather, it is a reference as to
the time and place the affirmative defense evidence must be presented that tends to
support that the accused person used the force in self-defense.” Brooks, 5th Dist.
Richland No. 2019 CA 0104,
2020-Ohio-4123
, at ¶ 42. The court determined that
the legislature “has not indicated, expressly or otherwise, that H.B. 228 is to be
retroactively applied.” Id. at ¶ 37. Thus, the court held that the burden-shifting
changes to the self-defense statute could not be applied to offenses that were
committed before the effective date of the statute, but tried after the effective date.
Id. at ¶ 43.
{¶17} On September 21, 2020, the Eleventh District, without citing Gloff or
Brooks, held that “[s]ince the date of the offense preceded the enactment of the
amended statute, [the defendant] would not have been able to take advantage of the
[new law] if the court had delayed her trial.” State v. McEndree,
2020-Ohio-4526
,
___N.E.3d___, ¶ 46 (11th Dist.). The court further held, “[I]nasmuch as the
6
OHIO FIRST DISTRICT COURT OF APPEALS
amended self-defense statute creates a new burden of proof on the state, we find it
substantive and cannot constitutionally be applied retroactively.” (Emphasis
deleted.) Id. at ¶ 44.
{¶18} The Second District weighed in on October 9, 2020, in a two-to-one
decision, agreeing with the Fifth District’s holding in Brooks. The court held:
The language only reflects that the H.B. 228 changes, whenever effective,
are applicable to trials at which “there is evidence presented that tends to
support that the [defendant] used * * * force in self-defense * * *.” The
language simply does not address whether application of H.B. 228 is
required at a trial involving an offense occurring before March 28, 2019
but coming to trial on or after that date.
(Citation omitted.) State v. Irvin, 2d Dist. Montgomery No. 28495, 2020-Ohio-
4847, ¶ 24, quoting R.C. 2901.05(B)(1). In his dissent in Irvin, Judge Froelich stated
that he agreed with the Twelfth District’s interpretation of the applicability of H.B.
228. Id. at ¶ 56. And for the following reasons, so do we.
{¶19} The plain language of H.B. 228 indicates that the new standard for
self-defense, defense of another, and defense of residence is to be applied
prospectively to trials. The H.B. 228 amendment focuses on when the trial is held, as
opposed to when the offense was committed. Gloff,
2020-Ohio-3143
,
___N.E.3d___, at ¶ 22-23.
{¶20} Just because the offense may have been committed before the law
changed does not automatically make H.B. 228 a retroactive law. As discussed in
Landgraf v. USI Film Prod.,
511 U.S. 244
, 275,
114 S.Ct. 1483
,
128 L.Ed.2d 229
(1994):
7
OHIO FIRST DISTRICT COURT OF APPEALS
A statute does not operate “retrospectively” merely because it is applied
in a case arising from conduct antedating the statute’s enactment, or
upsets expectations based in prior law. Rather, the court must
ask whether the new provision attaches new legal consequences to events
completed before its enactment. The conclusion that a particular rule
operates “retroactively” comes at the end of a process of judgment
concerning the nature and extent of the change in the law and the degree
of connection between the operation of the new rule and a relevant past
event.
(Citations omitted.)
Id. at 269-270
. “[T]he prohibition against retroactive laws ‘is a
bar against the state’s imposing new duties and obligations upon a person’s past
conduct and transactions, and it is a protection for the individual who is assured that
he may rely upon the law as it is written and not later be subject to new obligations
thereby.’ ” E. Ohio Gas Co. v. Limbach
26 Ohio St.3d 63
, 65-66,
498 N.E.2d 453
(1986), quoting Lakengren, Inc. v. Kosydar,
44 Ohio St.2d 199
, 201,
339 N.E.2d 814
(1975).
{¶21} We must, therefore, examine what it is that H.B. 228 does. Does it
attach new legal consequences to events completed before its enactment or impose
new duties and obligations upon a person’s past conduct and transactions? No, it
does not. H.B. 228 does not create nor dismantle the affirmative defense of defense
of another, nor does it change the elements of proving defense of another. See
Landgraf at 270 (changing the elements would have violated the “familiar
considerations of fair notice, reasonable reliance, and settled expectations”). Rather,
8
OHIO FIRST DISTRICT COURT OF APPEALS
it changes the burden of proof when asserting defense of another. Therefore, it
affects the manner and procedure by which a jury arrives at its verdict.
{¶22} “Laws of a remedial nature providing rules of practice, courses of
procedure, or methods of review are applicable to any proceedings conducted after
the adoption of such laws.” EPI of Cleveland, Inc. v. Limbach,
42 Ohio St.3d 103
,
105,
537 N.E.2d 651
(1989), quoting State ex rel. Holdridge, v. Indus. Comm.
11 Ohio St.2d 175
,
228 N.E.2d 621
(1967) (the court found that where the amendment at
issue affected “only the manner of arriving at a fact conclusion, upon which the
substantive law would operate, it was itself procedural or remedial rather than
substantive.”).
{¶23} As stated by the Court in Landgraf, “Changes in procedural rules may
often be applied in suits arising before their enactment without raising concerns
about retroactivity.” Landgraf,
511 U.S. at 275
,
114 S.Ct. 1483
,
128 L.Ed.2d 229
.
“Because rules of procedure regulate secondary rather than primary conduct, the fact
that a new procedural rule was instituted after the conduct giving rise to the suit does
not make application of the rule at trial retroactive.” Id.; accord Buckeye Candy &
Tobacco Co. v. Limbach,
28 Ohio St.3d 40
, 41,
501 N.E.2d 1202
(1986) (“A
procedural law is generally considered to be applied prospectively when it is applied
to proceedings in which the particular procedural aspect regulated by the law has not
yet occurred”).
{¶24} Recently, the Florida Supreme Court held that a statutory amendment
that shifted the burden of proof to the prosecution at a self-defense immunity
hearing was a procedural change in the law. Love v. State,
286 So. 3d 177
(Fla.
2019). Therefore, the court held that the amendment applies to all immunity
9
OHIO FIRST DISTRICT COURT OF APPEALS
hearings that take place after the amendment’s effective date, even if the offense
occurred before the effective date. Id. at 188. The court stated, “The mere
application of a new procedural statute * * * in a pending case is not a retroactive
application.” Id. at 189. The court went on to explain that this “does not mean that a
new procedure applies in all pending cases. Rather the ‘commonsense’ application of
a new procedure generally ‘depends on the posture of the particular case.’ ” Id. at
187-188, quoting Landgraf at 275, fn. 29. Thus, in Love, the court found that if the
immunity hearing had taken place before the statute’s effective date, the defendant
would not be entitled to a new immunity hearing under the new law. Id. at 180
(holding that “there is no indication the Legislature intended the statute to undo pre-
effective-date immunity hearings”).
{¶25} H.B. 228 affects only the procedure to be followed in proving defense
of another, and that “particular procedural aspect,” the burden of proof at Pitts’s
trial, had not yet occurred when H.B. 228 became effective. See Buckeye Candy &
Tobacco Co., 28 Ohio St.3d at 41,
501 N.E.2d 1202
; Love at 189. Therefore, even
though Pitts punched Turner on September 6, 2018, the new procedure applies to his
case because H.B. 228 went into effect on March 28, 2019, seven days before Pitts’s
jury trial began.
{¶26} For the reasons discussed above, the trial court erred in failing to
instruct the jury in accordance with H.B. 228. The state does not argue that the trial
court’s error was harmless, and we decline to conduct a harmless-error analysis of
our own volition. Accordingly, Pitts’s first assignment of error is sustained.
10
OHIO FIRST DISTRICT COURT OF APPEALS
Conclusion
{¶27} Our disposition of the first assignment of error renders the second
assignment of error moot, and so we decline to address it. The judgment is reversed
and the cause remanded for a new trial.
{¶28} We note that the Second Appellate District in State v. Irvin, 2d Dist.
Montgomery No. 28495,
2020-Ohio-4847
, recognized the district split on this issue
and sua sponte certified a conflict to the Ohio Supreme Court pursuant to Article IV,
Section 3(B)(4) of the Ohio Constitution. Id. at ¶ 54. We likewise, pursuant to Article
IV, Section 3(B)(4) of the Ohio Constitution, certify the same question:
{¶29} Do the burden-shifting changes made to R.C. 2901.05, through the
passage of H.B. 228, apply to offenses that were committed before the effective date
of the statute but tried after the effective date?
Judgment reversed and cause remanded.
MYERS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
11 |
4,638,793 | 2020-12-02 16:12:27.040515+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2020/2020-Ohio-5496.pdf | [Cite as State v. Hernandez,
2020-Ohio-5496
.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190698
TRIAL NO. B-9704868A
Plaintiff-Appellee, :
vs. :
O P I N I O N.
JOSE HERNANDEZ, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 2, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, Melynda J. Machol,
Assistant Prosecuting Attorney, and Philip R. Cummings, Assistant Prosecuting
Attorney, for Plaintiff-Appellee,
McKinney & Namei Co., L.P.A., and Sarah C. Larcade, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} In January 1998, defendant-appellant Jose Hernandez pled guilty to
repeatedly raping his stepdaughter and entered into an agreed sentence of five to 25
years in prison. In July 2019, he filed a motion to withdraw his guilty plea and/or
vacate his conviction on the basis that the trial court failed to advise him of the
possible immigration-related consequences of his plea. The trial court denied the
motion.
{¶2} He has appealed, arguing in one assignment of error that the trial
court erred in denying his motion since no R.C. 2943.031 advisement was given at
the time of his plea. For the reasons discussed below, we overrule the sole
assignment of error and affirm the judgment of the trial court.
The R.C. 2943.031 Advisement
{¶3} Trial courts are required to advise a defendant of possible immigration
consequences before accepting a guilty plea, unless the defendant states on the
record or in writing that he is a United States citizen. R.C. 2943.031(B).
(A) Except as provided in division (B) of this section, prior to accepting a
plea of guilty or a plea of no contest to an indictment, information, or
complaint charging a felony or a misdemeanor * * *, the court shall
address the defendant personally, provide the following advisement to
the defendant that shall be entered in the record of the court, and
determine that the defendant understands the advisement:
“If you are not a citizen of the United States, you are hereby advised that
conviction of the offense to which you are pleading guilty (or no contest,
2
OHIO FIRST DISTRICT COURT OF APPEALS
when applicable) may have the consequences of deportation, exclusion
from admission to the United States, or denial of naturalization pursuant
to the laws of the United States.”
***
(D) Upon motion of the defendant, the court shall set aside the judgment
and permit the defendant to withdraw a plea of guilty or no contest and
enter a plea of not guilty or not guilty by reason of insanity, if, after the
effective date of this section, the court fails to provide the defendant the
advisement described in division (A) of this section, the advisement is
required by that division, and the defendant shows that he is not a citizen
of the United States and that the conviction of the offense to which he
pleaded guilty or no contest may result in his being subject to
deportation, exclusion from admission to the United States, or denial of
naturalization pursuant to the laws of the United States.
R.C. 2943.031.
{¶4} The state concedes that the four factors listed in R.C. 2943.031(D)
have been met, but argues that Hernandez’s motion to withdraw his guilty plea was
properly denied because he failed to demonstrate prejudice and the motion was
untimely.
{¶5} An appellate court reviews a trial court’s decision on a motion to
withdraw a plea pursuant to R.C. 2943.031 under an abuse-of-discretion standard.
State v. Francis,
104 Ohio St.3d 490
,
2004-Ohio-6894
,
820 N.E.2d 355
, ¶ 32. “The
exercise of discretion we discuss applies to the trial court’s decision on whether the
R.C. 2943.031(D) elements have been established (along with the factors of
3
OHIO FIRST DISTRICT COURT OF APPEALS
timeliness and prejudice discussed below), not generally to the trial court’s discretion
once the statutory provisions have been met.” (Emphasis sic.) Id. at ¶ 34.
{¶6} Despite the fact that the General Assembly did not include a timeliness
provision in R.C. 2943.031, the Francis court held that the timeliness of the
defendant’s motion to withdraw his guilty plea should be considered. Id. at ¶ 40. The
court stated:
The more time that passes between the defendant’s plea and the filing of
the motion to withdraw it, the more probable it is that evidence will
become stale and that witnesses will be unavailable. The state has an
interest in maintaining the finality of a conviction that has been
considered a closed case for a long period of time. It is certainly
reasonable to require a criminal defendant who seeks to withdraw a plea
to do so in a timely fashion rather than delaying for an unreasonable
length of time.
Id.
{¶7} The Francis court held that in weighing untimeliness, a court must
consider the facts of the case, such as when the immigration-related consequences of
the plea became known to the defendant. Id. at ¶ 42.
{¶8} Hernandez contends that Francis did not state that timeliness should
be considered in all circumstances. Rather, Hernandez contends that timeliness only
becomes a consideration if there was some advisement regarding immigration
consequences given at the plea hearing. Since there was no advisement given at his
plea hearing, Hernandez argues that timeliness is not a factor that should be
considered.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶9} The state agrees that the trial court did not provide any immigration
advisement whatsoever at the plea hearing. The state does not argue, and we do not
find, substantial compliance, as there was no compliance by the trial court.
Nevertheless, the state contends that timeliness is a factor we must consider even
though the trial court did not give any immigration advisement.
{¶10} We agree with the state that Francis made timeliness a factor, even for
cases in which no advisement was given. While the facts of Francis demonstrated
that some advisement was given, the court clearly stated that “[t]imeliness of the
motion is just one of many factors that the trial court should take into account when
exercising its discretion in considering whether to grant the motion.” Francis,
104 Ohio St.3d 490
,
2004-Ohio-6894
,
820 N.E.2d 355
, at ¶ 40. Chief Justice Moyer’s
concurrence seems to read the majority opinion similarly when he argued that the
“holding * * * violates the plain language of R.C. 2943.031(D) * * * [because]
timeliness of the filing of the motion is not among the statutory criteria.”
Id.
at ¶ 59-
60. The Chief Justice wrote, “While the state’s interest in finality is undeniable, we
should not use the protection of that interest as a justification for disregarding the
plain language of a statute.” Id. at ¶ 64.
{¶11} Several other courts of appeals have agreed with our interpretation of
Francis. See, e.g., State v. Walker,
2017-Ohio-511
,
78 N.E.3d 922
, ¶ 18 (10th Dist.)
(“Other courts addressing Francis have found that timeliness is a factor to consider
even when a trial court did not give any immigration advisement.”); State v. Alonzo,
3d Dist. Seneca No. 13-15-26,
2016-Ohio-160
, ¶ 19 (“[e]ven assuming arguendo that
the record supports Alonzo’s claim that the advisement was not given to him, the
withdrawal of the plea is not automatic simply because the court failed to give the
5
OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2943.031(A) advisement.”); State v. Lein, 8th Dist. Cuyahoga No. 103954,
2016-Ohio-5330
, ¶ 14 (defendant’s 20-year delay in filing a motion to withdraw his
plea rendered it untimely even where the R.C. 2943.031(A) advisement was
presumed not given); State v. Reyes, 12th Dist. Butler Nos. CA2015-06-113, CA2015-
06-114 and CA2015-06-115,
2016-Ohio-2771
, ¶ 24, (“based upon the particular
circumstances of a case, a trial court may deny a motion to withdraw a plea filed
pursuant to R.C. 2943.031(D) solely on the basis of timeliness.”).
{¶12} Hernandez points us to State v. Kona,
148 Ohio St.3d 539
, 2016-Ohio-
7796,
71 N.E.3d 1023
, ¶ 41, where the court held that since no R.C. 2943.031(A)
advisement was given, the trial court erred in not granting the defendant’s motion to
withdraw his guilty plea. However, the issue in Kona was whether the defendant’s
admission of facts sufficient to establish guilt as part of a pretrial diversion program
invoked the advisement requirement of R.C. 2943.031(A). Id. at ¶ 1. Timeliness was
not raised by the state and was not discussed by the court. See id. at ¶ 13. Therefore,
we cannot find that Kona either expressly or impliedly overruled Francis.
{¶13} As an intermediate appellate court, we are, of course, bound to follow
Supreme Court precedent. See Reyes at ¶ 21 (“It is axiomatic that a court of appeals
must follow established Ohio Supreme Court precedent.”). Therefore, despite the
fact that R.C. 2943.031(D) mentions nothing about timeliness, we find that pursuant
to Francis, timeliness is a factor that must be considered in this case.
{¶14} In his motion to withdraw his guilty plea, Hernandez claimed that (1)
when he pled guilty he was under the impression that he would not be deported as a
result of his plea; (2) the Ohio Parole Board was under the impression that he would
6
OHIO FIRST DISTRICT COURT OF APPEALS
not be deported; and (3) the delay in filing his motion from December 2016 to July
2019 was due to his attorney, not him.
{¶15} First, there is abundant evidence demonstrating that although
Hernandez was not read the R.C. 2943.031(A) advisement at his plea hearing, he was
aware of the immigration-related consequences of his plea well before December
2016. At the plea hearing, defense counsel stated, and Hernandez agreed, that they
had spent “a lot of time * * * many hours” going over his guilty plea. Then, the
following exchange occurred:
THE COURT: Are there any other underlying agreements upon which the
proposed plea is based other than what has been stated for the record?
DEFENSE COUNSEL: There is not. In fact, I did inform him in addition,
because of the nature of the charge, nature of the conviction * * * that he
was subject to deportation. He is not a citizen of the United States. I want
to make that clear also.
{¶16} Furthermore, the prosecutor stated:
We also [sic] dismissing what is called the sexual predator spec because
in this particular instance, I don’t believe it is going to have any meaning,
since it is certainly our understanding that when the defendant is
convicted of a felony, he will be deported after he serves his time here,
and he will never be in the United States to be subject to any kind of
notification. So it has really no meaning, so we will dismiss the
specification attached to count 1 also.
{¶17} Second, Hernandez signed a written plea agreement prior to the
hearing. The plea form asked, “Are you a citizen of the United States of America?”
7
OHIO FIRST DISTRICT COURT OF APPEALS
Hernandez answered, “No.” The plea form then recited the R.C. 2943.031(A)
advisement. Hernandez signed at the bottom of the form. At the plea hearing, the
court asked Hernandez if he had read the plea form, discussed it with defense
counsel, understood its meaning, and signed it. Hernandez responded affirmatively.
{¶18} Third, Ohio Department of Rehabilitation and Correction (“ODRC”)
and parole board documents put Hernandez on notice of deportation well before July
2019. On April 23, 1998, Hernandez signed a form given to him by ODRC advising
him that he was wanted by “US Immigration” and that there had been a “detainer
placed.” In its February 2001 denial of parole, the parole board stated, “Inmate
should serve at least ½ his maximum sentence before being deported to El
Salvador.” Then, inexplicably, in its July 2013 denial of parole, the board questioned
whether Hernandez would be deported (“Offender currently has a detainer for
deportation. * * * The board has been notified that deportation is unlikely”). Despite
any wrongful assumption made by the parole board in 2013, Hernandez had been
advised years earlier that he would be deported, and so the parole board’s statement
that he might not be deported does not excuse his delay.
{¶19} Fourth, the length of the delay (21 years) supports a finding that
Hernandez’s motion was untimely. “Waiting 24 years to file his R.C. 2943.031(D)
motion since entering his guilty pleas was, while not dispositive alone as a matter of
law, untimely and unreasonable, as many courts of appeals have found with lesser
delays.” State v. Leon, 6th Dist. Huron No. H-18-018,
2019-Ohio-1178
, ¶ 43 (listing
decisions from other courts of appeals).
{¶20} Finally, Hernandez’s complete failure to explain the delay in filing the
motion supports a holding that the motion was untimely. See Walker, 2017-Ohio-
8
OHIO FIRST DISTRICT COURT OF APPEALS
511,
78 N.E.3d 922
, at ¶ 25. As illustrated above, his claim that he was unaware of
the consequences of his plea until December 2016 is without merit.
{¶21} The trial court did not explain its reasoning in denying Hernandez’s
motion to withdraw his guilty plea. However, the state’s motion in response to
Hernandez’s motion to withdraw conceded that the four R.C. 2943.031(D) factors
had been met and focused on the issue of timeliness. Since we agree that
Hernandez’s motion was untimely, we cannot say that the trial court abused its
discretion in denying his motion to withdraw his guilty plea.
Conclusion
{¶22} The sole assignment of error is overruled and the judgment of the trial
court is affirmed.
Judgment affirmed.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
9 |
4,638,794 | 2020-12-02 16:12:27.323038+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2020/2020-Ohio-5495.pdf | [Cite as State v. Combs,
2020-Ohio-5495
.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190530
TRIAL NO. B-1803185B
Plaintiff-Appellee, :
vs. : O P I N I O N.
TRULANCE COMBS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Vacated in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 2, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,
Assisting Prosecuting Attorney, for Plaintiff-Appellee,
Roger W. Kirk, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
W INKLER , Judge.
{¶1} Defendant-appellant Trulance Combs appeals from the judgment of
the Hamilton County Court of Common Pleas revoking his community control and
imposing a prison sentence of eight years, with 129 days of confinement credit. He
argues that the trial court failed to properly consider R.C. 2929.11 and 2929.12 when
sentencing him and to award sufficient credit for his confinement before serving the
prison term.
{¶2} The record does not support Combs’s claim that the court failed to
consider the relevant sentencing statutes when imposing the eight-year prison term,
but it does show that Combs should have received additional confinement credit.
Thus, we vacate the confinement-credit calculation from his sentence and remand
the cause to the trial court for the proper calculation of the credit. In all other
respects, we affirm.
Facts and Procedural History
{¶3} In 2018, Combs was convicted of burglary, a second-degree felony,
after entering a guilty plea. The trial court ordered a presentence investigation,
which showed that Combs had never served a prison term but had a high risk of
recidivism. The trial court subsequently sentenced Combs to two years of
community control with intensive supervision. One condition of the community-
control sanction included the successful completion of the residential program at the
River City Correctional Center. The court also notified Combs that he would be
sentenced to an eight-year prison term, the maximum term for the offense, if he
violated the conditions of his community control.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} In April 2019, Combs was charged with violating the conditions of his
community control. He pleaded guilty to that charge in August 2019. The trial court
then revoked Combs’s community control and, after a full sentencing hearing,
imposed an eight-year prison term. The court additionally indicated Combs would
be credited “for whatever time he’[d] served.” The clerk announced that the amount
appeared to be 129 days, but also indicated that amount may not have included the
days that Combs was confined at River City. The court then notified Combs he would
receive a “credit” of 129 days and included this credit in the sentencing entry.
Combs did not object when informed of the 129 days of credit.
Assignments of Error
{¶5} Both of Combs’s assignments of error involve his sentence. Pursuant
to R.C. 2953.08(G)(2)(a), we may modify or vacate a felony sentence only if we
clearly and convincingly find that the record does not support the trial court’s
findings under relevant statutes or that the sentence is contrary to law. State v.
Marcum,
146 Ohio St.3d 516
,
2016-Ohio-1002
,
59 N.E.3d 1231
, ¶ 1, quoted in State
v. Jackson, 1st Dist. Hamilton No. C-180162,
2019-Ohio-1688
, ¶ 5; State v. White,
2013-Ohio-4225
,
997 N.E.2d 629
, ¶ 5 (1st Dist.).
{¶6} We first address Combs’s second assignment of error. In essence, he
argues that his eight-year prison term is contrary to law. Specifically, Combs
contends the trial court failed to consider R.C. 2929.11 and 2929.12 when
determining an appropriate sentence.
{¶7} When sentencing Combs for his community-control violation, the trial
court was to be guided by the purposes of felony sentencing set forth in R.C. 2929.11
and the sentencing factors set forth in R.C. 2929.12. See State v. Fraley,
105 Ohio St.3d 13
,
2004-Ohio-7110
,
821 N.E.2d 995
, ¶ 17. But these are not fact-finding
3
OHIO FIRST DISTRICT COURT OF APPEALS
statutes, and absent an affirmative demonstration by Combs to the contrary, we may
presume that the trial court considered them. State v. Bedell,
2018-Ohio-721
,
107 N.E.3d 160
, ¶ 29 (1st Dist.); State v. Patterson, 1st Dist. Hamilton No. C-170329,
2018-Ohio-3348
, ¶ 60. Combs argues that this court cannot presume the trial court
considered the statutes in this case because of the mitigating facts he presented. We
disagree.
{¶8} At the sentencing hearing for the community-control violation, the
trial court noted that Combs was placed on community control after a burglary
conviction and then violated the conditions of his community control in several
significant ways. He walked away from his work detail and failed to return to River
City. After absconding, he was charged in Kentucky with raping the mother of his
children in front of his children. The trial court also solicited facts in mitigation from
defense counsel and the defendant. These included that Combs was young, had a job
waiting for him, and had entered a guilty plea to a reduced sex offense in Kentucky.
In the end, though, the court imposed the eight-year prison term it had told Combs it
would impose if he violated the conditions of his community control. On this record,
Combs has not affirmatively demonstrated that the trial court failed to consider R.C.
2929.11 and 2929.12 when imposing sentence. Accordingly, we overrule the second
assignment of error.
{¶9} In his first assignment of error, Combs argues the trial court
committed plain error when it failed to properly calculate his credit for confinement.
According to Combs, he was not credited for confinement in accordance with the
credit afforded under R.C. 2967.191, including all of the days he was confined at
River City.
4
OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} A felony offender sentenced to prison is entitled to a credit for the
“total number of days that the prisoner was confined for any reason arising out of the
offense for which the prisoner was convicted and sentenced.” R.C. 2967.191. The
trial court has the duty to determine this confinement credit at the sentencing
hearing and include in the sentencing entry the proper amount of the credit. R.C.
2929.19(B)(2)(g)(i). The amount of time served in a community-based correctional
facility qualifies as confinement under R.C. 2967.191 and should be credited towards
a prison sentence after conditions of the community sanctions are violated. See State
v. Napier,
93 Ohio St.3d 646
, 648,
758 N.E.2d 1127
(2001); State v. Whited, 12th
Dist. Butler No. CA2018-04-079,
2019-Ohio-18
, ¶ 22.
{¶11} The trial court’s failure to properly calculate the amount of
confinement-time credit rises to the level of plain error and renders that part of the
sentence clearly and convincingly contrary to law. See State v. Hargrove, 1st Dist.
Hamilton No. C-120321,
2013-Ohio-1860
, ¶ 12. The state concedes that Combs was
not sufficiently credited for all of his confinement, including the time he was
confined at River City, a community-based correctional facility. Consequently, we
sustain the first assignment of error. The cause must be remanded for the trial court
to determine the proper amount of confinement credit to which Combs is entitled.
Conclusion
{¶12} Because the trial court did not properly calculate Combs’s confinement
credit, we vacate that part of Combs’s sentence, and we remand the cause for the trial
court to determine the proper amount of confinement credit to which Combs is
entitled. In all other respects, we affirm.
Judgment affirmed in part, vacated in part, and cause remanded.
MYERS, P.J., and CROUSE, J., concur.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its own entry on the date of the release of this opinion.
6 |
4,638,795 | 2020-12-02 16:12:27.668616+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2020/2020-Ohio-5498.pdf | [Cite as In re J.M.,
2020-Ohio-5498
.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.M. : APPEAL NOS. C-200075
C-200076
: C-200077
C-200078
: TRIAL NOS. 19-2342Z
19-3318Z
: 19-3319Z
19-3352Z
:
: O P I N I O N.
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 2, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee State of Ohio,
Timothy Young, Ohio Public Defender, and Abigail Christopher, Assistant State
Public Defender, for Defendant-Appellant J.M.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant J.M. entered admissions to acts which, had they
been committed by an adult, would constitute complicity to aggravated robbery and
complicity to the accompanying firearm specifications for her role in a series of
robberies. The juvenile court committed J.M. to the Ohio Department of Youth
Services (“DYS”) for three years on each of the firearm specifications.
{¶2} J.M. has appealed, arguing in three assignments of error that (1) the
juvenile court erred in imposing three-year commitments for the firearm
specifications where all parties stipulated that she was not the principal offender and
did not furnish, use, or dispose of the gun used by the principal offender; (2) she was
denied the effective assistance of counsel under the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Section 10 of the Ohio
Constitution; and (3) the juvenile court did not substantially comply with Juv.R. 29
when it improperly advised her that she could receive a three-year commitment to
DYS for each firearm specification when she was only complicit to the underlying
offense.
{¶3} If a juvenile is complicit to an offense where the principal offender
would be guilty of a firearm specification under R.C. 2941.145, but the juvenile did
not furnish, use, or dispose of the firearm that was involved in the underlying
offense, in addition to any other penalty, the court may impose no more than a one-
year commitment to DYS. R.C. 2152.17(B)(1).
{¶4} The state concedes that J.M. was not the principal offender and did
not furnish, use, or dispose of the firearm, and therefore, the juvenile court was
2
OHIO FIRST DISTRICT COURT OF APPEALS
limited to imposing a maximum commitment of one year on each of the firearm
specifications.
Conclusion
{¶5} The first assignment of error is sustained and the cause is remanded to
the juvenile court to conduct a dispositional hearing on the firearm specifications.
The remainder of the juvenile court’s judgments are affirmed. Due to our disposition
of the first assignment of error, we do not address the second or third assignments of
error.
Judgments affirmed in part, reversed in part, and cause remanded.
MOCK, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
3 |
4,638,796 | 2020-12-02 16:12:28.022933+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/1/2020/2020-Ohio-5497.pdf | [Cite as Frank v. S.W. Ohio Regional Transit Auth.,
2020-Ohio-5497
.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
EMILY FRANK, : APPEAL NO. C-200015
TRIAL NO. A-1800441
and :
LYNN FRANK, : O P I N I O N.
Plaintiffs-Appellees, :
vs.
:
SOUTHWEST OHIO REGIONAL
TRANSIT AUTHORITY, :
and :
TYRONE PATRICK, :
Defendants-Appellants. :
Civil Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part and Appeal Dismissed in Part
Date of Judgment Entry on Appeal: December 2, 2020
Colombo Law, Dino Colombo and Travis T. Mohler, for Plaintiffs-Appellees,
McCaslin, Imbus & McCaslin, Thomas J. Gruber and Michael P. Cussen, for
Defendants-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
Z A Y A S , Judge.
{¶1} Defendants-appellants, the Southwest Ohio Regional Transit Authority
(“SORTA”) and Tyrone Patrick, appeal the decision of the Hamilton County Court of
Common Pleas denying their motion for summary judgment claiming immunity on
the basis of political subdivision immunity pursuant to R.C. Chapter 2744. We
affirm in part and dismiss in part.
I. Background and Procedural History
{¶2} On January 27, 2016, Emily Frank and her father, Stephen Frank, were
in a crosswalk at the intersection of Erie Avenue and Edwards Road in Cincinnati,
Ohio, when they were struck by a SORTA bus driven by Patrick, a long-time SORTA
bus driver. As a result of the accident, Stephen died, and Emily sustained serious
injuries to her leg.
{¶3} On January 24, 2018, Emily and her mother, Lynn Frank, filed a nine-
count complaint against SORTA and Patrick. Against SORTA, the Franks alleged
negligent training (Count I), negligent entrustment (Count II), negligent retention
(Count III), negligence through vicarious liability (Count V), and negligent infliction
of emotional distress through vicarious liability (Count VII). Against Patrick, the
Franks alleged negligence (Count IV) and negligent infliction of emotional distress
(Count VI). The Franks alleged against both SORTA and Patrick a survivorship claim
(Count VIII) and a wrongful-death claim (Count IX). SORTA and Patrick answered
the complaint, and the parties proceeded with discovery.
{¶4} On November 13, 2019, the Franks filed a motion for leave to amend
their complaint to add allegations of “reckless” conduct or “recklessness” to the
2
OHIO FIRST DISTRICT COURT OF APPEALS
claims against SORTA for negligent training, negligent entrustment, and negligent
retention. On November 14, 2019, SORTA and Patrick filed a motion for summary
judgment. SORTA and Patrick argued that Patrick was immune from the Franks’
suit because he was acting in the scope of his employment and because the record
was “devoid of any evidence that [] Patrick acted with a malicious purpose, in bad
faith, or in a wanton or reckless manner.” SORTA argued that it was immune from
the Franks’ claims of negligent entrustment, negligent training, and negligent
retention under the doctrine of sovereign immunity.
{¶5} On December 17, 2019, the trial court granted the Franks’ motion for
leave to amend their complaint and denied SORTA and Patrick’s motion for
summary judgment. SORTA and Patrick now appeal, asserting three assignments of
error.
II. Analysis
A. The Franks’ Amended Complaint
{¶6} In their first assignment of error, SORTA and Patrick argue that the
trial court erred in allowing the Franks leave to amend their complaint. We find that
we are without jurisdiction to consider this assignment.
{¶7} A court of appeals does not have jurisdiction to rule upon the trial
court’s interlocutory decisions; rather, it has jurisdiction to review final appealable
orders. R.C. 2505.02(B). Generally, a trial court’s order granting a motion for leave
to amend the complaint is an interlocutory order. See Supportive Sols., L.L.C. v.
Electronic Classroom of Tomorrow,
137 Ohio St.3d 23
,
2013-Ohio-2410
,
997 N.E.2d 490
, ¶ 10. However, in circumstances involving political-subdivision immunity, a
political subdivision has the right to an interlocutory appeal under R.C. 2744.02(C)
when the order “denies a political subdivision * * * the benefit of an alleged
3
OHIO FIRST DISTRICT COURT OF APPEALS
immunity from liability as provided in this chapter or any other provision of the law
[it] is a final order.” See id. at ¶ 6.
{¶8} SORTA claims the Franks’ amendment “allows for a possibility of
liability, [which] denied the benefit of the immunity granted under R.C. 2744,” yet
none of the immunities contained in R.C. 2744.03 were affected. Compare
Supportive Solutions at ¶ 17-20 (trial court’s denial of political subdivision’s motion
for leave to file an amended answer to raise the affirmative defense of political-
subdivision immunity deprived the political subdivision from enjoying the benefits of
the alleged immunity). SORTA was required to prove its entitlement to immunity
regardless of whether the Franks were granted leave to amend their complaint to add
allegations regarding recklessness. In other words, the court’s order granting the
Franks’ leave did not foreclose SORTA’s ability to demonstrate alleged immunity and
was therefore not a final order under R.C. 2744.02(C). See Supportive Solutions at ¶
20.
{¶9} Consequently, SORTA and Patrick’s appeal of the trial court’s decision
granting the Franks’ motion for leave to amend their complaint is not properly
before us.
B. Patrick’s Claim of Immunity
{¶10} In their second assignment of error, SORTA and Patrick argue that the
trial court erred in denying summary judgment in favor of Patrick because he was
immune from suit under R.C. Chapter 2744.
{¶11} “We review the denial of sovereign immunity de novo.” Hubbell v.
City of Xenia,
115 Ohio St.3d 77
,
2007-Ohio-4839
,
873 N.E.2d 878
, ¶ 21. We also
review a trial court’s ruling on a motion for summary judgment de novo. See Wal-
Mart Realty Co. v. Tri-Cty. Commons Assoc., LLC, 1st Dist. Hamilton No. C-160747,
4
OHIO FIRST DISTRICT COURT OF APPEALS
2017-Ohio-9280
, ¶ 5. Civ.R. 56(C) provides that before summary judgment may be
granted, it must be determined that:
(1) [n]o genuine issue as to any material fact remains to be litigated;
(2) the moving party is entitled to judgment as a matter of law; and (3)
it appears from the evidence that reasonable minds can come to but
one conclusion, and viewing such evidence most strongly in favor of
the party against whom the motion for summary judgment is made,
that conclusion is adverse to that party.
Temple v. Wean United, Inc.,
50 Ohio St.2d 317
, 327,
364 N.E.2d 267
(1977). The
rule further provides that “[s]ummary judgment shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in the
action, show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.” Civ.R. 56(C).
{¶12} “[A] party seeking summary judgment, on the ground that the
nonmoving party cannot prove its case, bears the initial burden of informing the trial
court of the basis for the motion, and identifying those portions of the record that
demonstrate the absence of a genuine issue of material fact on the essential
element(s) of the nonmoving party’s claims.” Dresher v. Burt,
75 Ohio St.3d 280
,
293,
662 N.E.2d 264
(1996). “If the moving party fails to satisfy its initial burden,
the motion for summary judgment must be denied.”
Id.
If, however, the moving
party meets its initial burden, “the nonmoving party must then set forth specific facts
demonstrating that a genuine issue of material fact does exist that must be preserved
for trial, and if the nonmoving party does not so respond, summary judgment, if
appropriate, shall be entered against the nonmoving party.” Id. at 293.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} The Political Subdivision Tort Liability Act (“Act”), as codified in R.C.
Chapter 2744, establishes governmental immunity for political subdivisions and
their employees. The Act “requires a three-tiered analysis to determine whether a
political subdivision should be allocated immunity from civil liability.” Hubbard v.
Canton City School Bd. of Edn.,
97 Ohio St.3d 451
,
2002-Ohio-6718
,
780 N.E.2d 543
, ¶ 10, citing Cater v. Cleveland,
83 Ohio St.3d 24
, 28,
697 N.E.2d 610
(1998).
“The first tier is the general rule that a political subdivision is immune from liability
incurred in performing either a governmental or a proprietary function.” Anderson
v. Massillon, 5th Dist. Stark No. 2013CA00144,
2014-Ohio-2516
, ¶ 35, citing Greene
Cty. Agricultural Soc. v. Liming,
89 Ohio St.3d 551
,
733 N.E.2d 1141
(2000); R.C.
2744.02(A)(1). However, political-subdivision immunity is not absolute. R.C.
2744.02(B); see Cater. “The second tier of the analysis requires a court to determine
whether any of the five listed exceptions to immunity listed in R.C. 2744.02(B) apply
to expose the political subdivision to liability.” Anderson at ¶ 35. “If any of the
exceptions to immunity do apply, and if no defense in that section applies to negate
the liability of the political subdivision under that section, then the third tier of the
analysis requires an assessment of whether any defenses in R.C. 2744.03 apply to
reinstate immunity.” Smith v. McBride,
130 Ohio St.3d 51
,
2011-Ohio-4674
,
955 N.E.2d 954
, ¶ 15, citing Colbert v. Cleveland,
99 Ohio St.3d 215
,
2003-Ohio-3319
,
790 N.E.2d 781
.
{¶14} The three-tiered analysis applicable to a political subdivision does not
apply when determining whether an employee of a political subdivision will be liable
for harm caused to an individual. See Anderson at ¶ 37, citing Cramer v. Auglaize
Acres,
113 Ohio St.3d 266
,
2007-Ohio-1946
,
865 N.E.2d 9
, ¶ 17. Rather, R.C.
6
OHIO FIRST DISTRICT COURT OF APPEALS
2744.03(A)(6) controls. Under R.C. 2744.03(A)(6), an employee of a political
subdivision is immune from liability, unless one of the following applies:
(a) The employee’s acts or omissions were manifestly outside the scope
of the employee’s employment or official responsibilities;
(b) The employee’s acts or omissions were with malicious purpose, in
bad faith, or in a wanton or reckless manner;
(c) Civil liability is expressly imposed upon the employee by a section
of the Revised Code.
{¶15} At issue in this case is the applicability of the exception to immunity
set forth in R.C. 2744.03(A)(6)(b), specifically, whether, in striking the Franks while
driving a SORTA bus, Patrick acted in a “reckless manner.” The Franks do not
contend that Patrick acted with malicious purpose, in bad faith, or in a wanton
manner.
{¶16} Generally, whether an employee of a political subdivision is entitled to
R.C. 2744.03(A)(6) immunity is a question of law for determination by the court.
See, e.g., Conley v. Shearer,
64 Ohio St.3d 284
, 291,
595 N.E.2d 862
(1992), and
Feitshans v. Darke Cty.,
116 Ohio App.3d 14
, 19,
686 N.E.2d 536
(2d Dist.1996).
However, whether the employee acted in a wanton or reckless manner under R.C.
2744.03(A)(6)(b) is generally a question of fact for the jury. See Gates v. Leonbruno,
2016-Ohio-5627
,
70 N.E.3d 1110
, ¶ 37 (8th Dist.), citing Fabrey v. McDonald Village
Police Dept.,
70 Ohio St.3d 351
, 356,
639 N.E.2d 31
(1994). Accordingly, a trial court
may not grant summary judgment to a political-subdivision employee on the basis of
R.C. 2744.03(A)(6) immunity “unless, based on the evidence, reasonable minds
could conclude only that the employee did not act in a wanton or reckless manner. If
reasonable minds could disagree on this issue, then a trial court cannot properly
7
OHIO FIRST DISTRICT COURT OF APPEALS
grant an employee summary judgment based upon statutory immunity under R.C.
2744.03(A)(6).” Gates at ¶ 37.
{¶17} “Reckless conduct is characterized by the conscious disregard of or
indifference to a known or obvious risk of harm to another that is unreasonable
under the circumstances and is substantially greater than negligent conduct.”
Anderson v. Massillon,
134 Ohio St.3d 380
,
2012-Ohio-5711
,
983 N.E.2d 266
, ¶ 34,
citing Thompson v. McNeill,
53 Ohio St.3d 102
,
559 N.E.2d 705
(1990), adopting 2
Restatement of the Law 2d, Torts, Section 500, at 587 (1965); see Black’s Law
Dictionary (11th Ed.2019) (explaining that reckless conduct is characterized by “a
substantial and unjustifiable risk of harm to others” and “a conscious (sometimes
deliberate) disregard of or indifference to that risk,” but the actor does not desire
harm).
{¶18} The standard for establishing reckless conduct is “high” and requires
consideration of the “totality of the circumstances.” See, e.g., Adams v. Ward, 7th
Dist. Mahoning No. 09 MA 25,
2010-Ohio-4851
, ¶ 27. As such, the determination of
whether a political-subdivision employee acted in a reckless manner in operating a
motor vehicle in the course of his employment is highly dependent on the facts of
each case. See id.; Gates at ¶ 39.
{¶19} The facts in the case sub judice are that on the evening of January 27,
2016, Stephen and Emily Frank were at the corner of Erie Avenue and Edwards Road
waiting for the crosswalk-signal to cross the street, while at the same time Tyrone
Patrick was driving a SORTA bus on its typical route southbound on Edwards Road
towards the intersection of Erie Avenue where Patrick was intending to make a left-
hand turn. Earlier along the bus route, while in Norwood, Patrick purchased a cup of
chili from Wendy’s and ate the chili on the bus. Then, while at the intersection of
8
OHIO FIRST DISTRICT COURT OF APPEALS
Edwards Road and Erie Avenue, while the traffic light was red and as it turned green,
Patrick threw away the cup of chili. When the crosswalk-signal turned green,
signaling the permission to cross the street, the Franks began to cross Erie Avenue
within the crosswalk. As the Franks were in the crosswalk, Patrick was in the
intersection waiting for oncoming traffic to pass so that he could make the left-hand
turn onto Erie Avenue. Once traffic had passed, Patrick made the left-hand turn,
striking the Franks while they were still in the crosswalk. Stephen Frank was hit and
dragged approximately 30 feet before the bus ran over his torso and head, killing
him. Emily Frank was hit and thrown to the side such that the left rear tire of the bus
ran over her left leg, seriously injuring her ankle and foot.
{¶20} SORTA’s “Mandatory Turn Procedures,” a manual for SORTA bus
drivers, requires left-hand turns to be made at “no more than 5 miles per hour” and
states that drivers should “not accelerate through the turn.” Patrick made the left-
hand turn through the intersection at approximately 13 to 14 m.p.h. when he hit the
Franks in the crosswalk. The “Mandatory Turn Procedures” also require drivers to
“continually scan the intersection,” “paying particular attention to crosswalks and
corners that will be affected” by the turn. Patrick said that he did not see the Franks
prior to hitting them. Patrick acknowledged that he did not follow SORTA’s
“Mandatory Turn Procedures,” on which he had been retrained earlier in January,
and admitted that failure to follow the procedures could result in “devastating
consequences,” including pedestrian injury or death.
{¶21} In his affidavit, Patrick affirmed that at the time he was operating his
bus at the intersection and through his turn he was not on his cell phone, was not
talking to any passengers and was not distracted. Patrick Affidavit ¶ 24. Likewise, in
his deposition, Patrick testified that when he was at the intersection and preparing
9
OHIO FIRST DISTRICT COURT OF APPEALS
for and making a left-hand turn, he was not “driving while distracted.” Patrick
Deposition 61:16-61:21. However, Patrick testified later in the same deposition that
“the most likely reason [he] did not see [the Franks] at all in the crosswalk is because
[he was] distracted,” id. 75:12-75:23, and that he was “driving the bus and preparing
to turn while distracted,” id. 66:21-66:24.
{¶22} The Franks argued in their opposition to summary judgment that
Patrick was reckless because he violated “virtually every single safety rule set forth in
SORTA’s Mandatory Turn Procedures that were designed to protect pedestrians,”
and “made the turn at almost three times the maximum turning speed required by
SORTA’s training manuals.” The Franks also argued that Patrick knew of the safety
rules in the training manuals, and testified in his deposition that it was a known risk
that if he did not follow the bus safety rules there could be devastating consequences,
including pedestrian injury or death. SORTA and Patrick argue that the violation of
departmental policy is not per se reckless conduct, and that while Patrick acted
negligently, there is no evidence of recklessness.
{¶23} The Ohio Supreme Court held in Anderson,
134 Ohio St.3d 380
, 2012-
Ohio-5711,
983 N.E.2d 266
, that indeed “the violation of a statute, ordinance, or
departmental policy enacted for the safety of the public is not per se willful, wanton,
or reckless conduct,” but that such violation “may be relevant to determining the
culpability of a course of conduct.” Quoting the Restatement, the court said:
In order that the breach of [a] statute constitute reckless disregard for
the safety of those for whose protection it is enacted, the statute must
not only be intentionally violated, but the precautions required must
be such that their omission will be recognized as involving a high
10
OHIO FIRST DISTRICT COURT OF APPEALS
degree of probability that serious harm will result. 2 Restatement of
the Law 2d, Torts, Section 500, Comment e (1965).
Accordingly, “[w]ithout evidence of an accompanying knowledge that the violations
will in all probability result in injury, evidence that policies have been violated
demonstrates negligence at best.” (Internal quotations omitted.) Anderson at ¶ 38.
{¶24} Here, Patrick admitted in his deposition testimony that he knew
SORTA’s “Mandatory Turn Procedures,” as he had been retrained on them only three
weeks prior to the accident. Additionally, he admitted in his testimony that failing to
adhere to the turn procedures would likely result in “devastating consequences.” As
explained by Anderson, Patrick’s knowledge of the probable result from the violation
of SORTA’s procedures is relevant to determining his culpability. See Anderson at ¶
37-38. Thus, there are questions of fact as to whether Patrick acted recklessly.
{¶25} In addition, Patrick’s affidavit in support of summary judgment
contradicts his deposition testimony. In his affidavit, Patrick stated that he was not
distracted while operating the bus in the intersection where he hit the Franks. In his
deposition, he initially said he was not distracted but later said he was distracted. “If
an affidavit of a movant for summary judgment is inconsistent with the movant’s
former deposition testimony, summary judgment may not be granted in the
movant’s favor.” Pettiford v. Aggarwal,
126 Ohio St.3d 413
,
2010-Ohio-3237
,
934 N.E.2d 913
, ¶ 24, quoting Byrd v. Smith,
110 Ohio St.3d 24
,
2006-Ohio-3455
,
850 N.E.2d 47
. This inconsistency—in combination with Patrick’s admission that he
knew violating SORTA’s bus safety rules could result in devastating consequences,
including pedestrian injury or death—creates a material issue of fact, which
precludes summary judgment in Patrick’s favor. Therefore, we overrule SORTA and
Patrick’s second assignment of error.
11
OHIO FIRST DISTRICT COURT OF APPEALS
C. SORTA’s Claim of Immunity
{¶26} In their third assignment of error, SORTA and Patrick argue that the
trial court erred in denying summary judgment in favor of SORTA on Counts I, II,
III, V, and VII of the Franks’ complaint.
{¶27} As explained above, the general rule is that a political subdivision is
immune from liability pursuant to R.C. 2744.02(A)(1). However, the Franks alleged
an exception to immunity under R.C. 2744.02(B)(2), which provides that a political
subdivision is liable for “injury, death, or loss to person or property that is caused by
the negligent performance of acts by their employees with respect to proprietary
functions of the political subdivision.” This would include negligent training,
retention, and entrustment claims. See Matter v. Athens,
2014-Ohio-4451
,
21 N.E.3d 595
(4th Dist.) (discussing similar claims); Young v. Cuyahoga Cty. Bd. of Mental
Retardation, 8th Dist. Cuyahoga No. 97671,
2012-Ohio-3082
(same).
{¶28} Before R.C. 2744.02(B)(2) will remove a political subdivision’s
immunity, a plaintiff must establish the following: (1) that the negligence arose out of
a “proprietary function” and (2) the elements required to sustain a negligence action.
See Gabel v. Miami E. School Bd.,
169 Ohio App.3d 609
,
2006-Ohio-5963
864 N.E.2d 102
, ¶ 39-40 (2d Dist.).
{¶29} R.C. 2744.01(G) defines proprietary functions and provides in section
(2)(c) that “[t]he establishment, maintenance, and operation of a utility, including,
but not limited to, a * * * busline or other transit company” is a proprietary function.
In this case, the Franks’ allegation that SORTA’s operation of the busline necessarily
includes the supervision, training, and retention of bus drivers as part of its
proprietary function is well taken. After all, a busline cannot operate without
12
OHIO FIRST DISTRICT COURT OF APPEALS
drivers. See Nelson v. Cleveland, 8th Dist. Cuyahoga No. 98548,
2013-Ohio-493
, ¶
20 (discussing actions that constitute a proprietary function).
{¶30} The elements of a claim for relief for negligent hiring, retention, and
supervision are: “(1) the existence of an employment relationship; (2) the employee’s
incompetence; (3) the employer’s actual or constructive knowledge of such
incompetence; (4) the employee’s act or omission causing the plaintiff’s injuries; and
(5) the employer’s negligence in hiring or retaining the employee as the proximate
cause of plaintiff’s injuries.” Retuerto v. Berea Moving Storage & Logistics, 2015-
Ohio-2404,
38 N.E.3d 392
, ¶ 55 (8th Dist.).
{¶31} Here, it is undisputed that Patrick is an employee of SORTA and was
acting within his scope of employment at the time of the accident. The Franks
presented evidence demonstrating that in the past ten years of Patrick’s employment
with SORTA, he was involved in 39 accidents prior to the one that killed Stephen
Frank. The Franks also presented evidence of Patrick’s reprimands for previous
distracted-driving incidents and evidence demonstrating that by SORTA’s own
criteria, Patrick should have been terminated on multiple occasions. The Franks also
demonstrated that SORTA had knowledge of Patrick’s driving history. In opposition
to SORTA’s motion for summary judgment, the Franks submitted an affidavit of
their expert witness, an expert on commercial bus operations, detailing the reasons
for which Patrick should have been previously terminated. The Franks alleged that
SORTA negligently trained Patrick by failing to inform him on appropriate times and
locations for breaks and/or meals and the dangers of distracted driving, and alleged
that SORTA negligently entrusted Patrick with a bus and negligently retained him
despite his dangerous driving history. The Franks alleged that their injuries and the
13
OHIO FIRST DISTRICT COURT OF APPEALS
death of Stephen Frank were proximately caused by SORTA’s breach of its duties of
care.
{¶32} SORTA, on the other hand, did not present any evidence or even any
argument that it did not act negligently in the training, entrustment, or retention of
Patrick. Further, as the movant, SORTA did not show that there was an absence of
material factual issues as to its negligence. Meanwhile, the evidence, viewed in a
light most favorable to the Franks, demonstrates that they presented sufficient
evidence regarding each element of a claim for negligent supervision, hiring, and
retention. Therefore, SORTA failed to meet its burden to establish the inapplicability
of R.C. 2744.02(B)(2) and was not entitled to a summary-judgment determination of
immunity in the second tier of the three-tiered analysis.
{¶33} Rather than mount a defense to negligence, SORTA seems to have
skipped to the third tier by simply claiming immunity under R.C. 2744.03(A)(3) and
(A)(5). Under the statute, if an R.C. 2744.02(B) exception to immunity applies, “the
political subdivision may still establish nonliability through a defense or immunity
listed in R.C. 2744.03(A).” Elias v. City of Akron, 9th Dist. Summit No. 29107,
2020-Ohio-480
, ¶ 20. SORTA asserted two defenses stated in R.C. 2744.03(A):
(3) The political subdivision is immune from liability if the action or
failure to act by the employee involved that gave rise to the claim of
liability was within the discretion of the employee with respect to
policy-making, planning, or enforcement powers by virtue of the
duties and responsibilities of the office or position of the employee.
***
(5) The political subdivision is immune from liability if the injury,
death, or loss to person or property resulted from the exercise of
14
OHIO FIRST DISTRICT COURT OF APPEALS
judgment or discretion in determining whether to acquire, or how to
use, equipment, supplies, materials, personnel, facilities, and other
resources unless the judgment or discretion was exercised with
malicious purpose, in bad faith, or in a wanton or reckless manner.
{¶34} SORTA contends that its employees exercised judgment and discretion
with regard to the training, entrustment, and retention of Patrick. SORTA argues
that it is immune from liability because the Franks “failed to assert SORTA acted
maliciously, in bad faith, or in a wanton or reckless manner”—but for the belated
addition of the words “reckless” and “recklessness” to their amended complaint.
SORTA’s contention reflects an oversight of “its dual burdens: (1) to establish its
affirmative defense of statutory immunity, and (2) to demonstrate the absence of a
genuine issue of material fact to show that it is entitled to summary judgment.” Elias
at ¶ 22, citing Nationstar Mtge., L.L.C. v. Mielcarek, 9th Dist. Lorain No.
15CA010748,
2016-Ohio-60
, ¶ 11; Dresher, 75 Ohio St.3d at 292-293,
662 N.E.2d 264
. Rather than demonstrating that its sovereign immunity was restored by a R.C.
2744.03 affirmative defense, SORTA attempts to prematurely shift the burden to the
Franks. See Elias at ¶ 22-23. However, “as both the party asserting the affirmative
defense and the party moving for summary judgment, the burden was upon [SORTA]
to show that it was entitled to summary judgment on the issue of the applicability of
a defense stated in R.C. 2744.03(A).” Elias at ¶ 23.
{¶35} In its summary-judgment motion, SORTA neglected to cite to any
relevant authority, reference any part of the record, or present any meaningful
argument to support the contention that its actions were a proper exercise of
discretion. See Civ.R. 56; Dresher, 75 Ohio St.3d at 293,
662 N.E.2d 264
. Therefore,
we conclude that SORTA failed to meet its burden to show that immunity would be
15
OHIO FIRST DISTRICT COURT OF APPEALS
reinstated under R.C. 2744.03(A)(3) or (5). Accordingly, the trial court did not err
by denying SORTA and Patrick’s motion for summary judgment on the issue of
SORTA’s claim of immunity under R.C. Chapter 2744. The third assignment of error
is overruled.
III. Conclusion
{¶36} We therefore overrule SORTA and Patrick’s second and third
assignments of error and affirm the judgment of the trial court, in part. We dismiss
the appeal in part as it relates to the first assignment of error, alleging that the trial
court erred in granting the Franks leave to amend their complaint, because we lack
jurisdiction over that issue.
Judgment accordingly.
MOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
16 |
4,638,797 | 2020-12-02 16:13:29.830593+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2020/2020-Ohio-5492.pdf | [Cite as State v. Fleetwood,
2020-Ohio-5492
.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29465
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DORSHAWN C. FLEETWOOD COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2018 11 3960
DECISION AND JOURNAL ENTRY
Dated: December 2, 2020
CARR, Presiding Judge.
{¶1} Appellant, Dorshawn Fleetwood, appeals the judgment of the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} On December 17, 2018, the Summit County Grand Jury indicted Fleetwood on one
count of burglary, one count of kidnapping, two counts of aggravated vehicular assault, two counts
of violating a protection order, one count of unlawful restraint, one count of operating a vehicle
under the influence of alcohol or drugs (“OVI”), and one count of driving under suspension.
Fleetwood pleaded not guilty to the charges at arraignment.
{¶3} Fleetwood ultimately entered into a written plea agreement with the State.
Fleetwood pleaded guilty to an amended count of trespass into a habitation, two counts of
aggravated vehicular assault, one count of violating a protection order, and one count of OVI. The
remaining charges were dismissed. The trial court imposed a total prison sentence of six years.
2
{¶4} On July 2, 2019, Fleetwood filed a pro se motion for leave to file a delayed appeal.
Fleetwood’s initial appeal was dismissed for failure to file a brief. Thereafter, this Court granted
Fleetwood’s motion to reinstate his appeal and appointed appellate counsel. Fleetwood now raises
one assignment of error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT FAILED TO ENGAGE IN A MEANINGFUL DIALOGUE
WITH APPELLANT FLEETWOOD REGARDING THE CONSTITUTIONAL
RIGHTS HE WAS WAIVING BY ENTERING GUILTY PLEAS TO SEVERAL
COUNTS OF THE INDICTMENT, AND MISINFORMED HIM OF ONE OF
THOSE RIGHTS, THEREBY RENDERING HIS PLEAS NOT KNOWINGLY,
INTELLIGENTLY, AND VOLUNTARILY ENTERED.
{¶5} In support of his sole assignment of error, Fleetwood contends that the trial court
failed to comply with Crim.R. 11(C) when it “essentially paraphrased” his constitutional rights at
the plea colloquy. Fleetwood maintains that the trial court should have inquired as to “whether
[he] understood [each] right, before going on to the next right.” This Court disagrees.
{¶6} Crim.R. 11(C)(2)(c) provides that a trial court in felony cases must “address[] the
defendant personally” and inform the defendant of his or her constitutional rights prior to accepting
a plea of guilty or no contest. Specifically, the trial court is required to:
Inform[] the defendant and determin[e] that the defendant understands that by the
plea the defendant is waiving the rights to jury trial, to confront witnesses against
him or her, to have compulsory process for obtaining witnesses in the defendant’s
favor, and to require the state to prove the defendant’s guilt beyond a reasonable
doubt at a trial at which the defendant cannot be compelled to testify against himself
or herself.
Id.
{¶7} “Because Crim.R. 11(C)(2)(c) deals with the waiver of constitutional rights, strict
compliance with the rule is required.” State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-
3
4354, ¶ 5, citing State v. Veney,
120 Ohio St.3d 176
,
2008-Ohio-5200
, ¶ 18. Under the strict
compliance standard, a trial court is not required to use the exact language of Crim.R. 11(C)(2)(c)
“so long as the trial court actually explains the rights to the defendant.” Veney at ¶ 27, citing State
v. Ballard,
66 Ohio St.2d 473
(1981), paragraph two of the syllabus. This Court reviews matters
of whether the trial court strictly complied with Crim.R. 11(C)(2)(c) de novo. State v. Owens, 9th
Dist. Summit No. 25174,
2010-Ohio-4635
, ¶ 7.
{¶8} In support of his assignment of error, Fleetwood notes that the high court in Ballard
observed that “the best method of informing a defendant of his constitutional rights is to use the
language contained in Crim.R. 11(C), stopping after each right and asking the defendant whether
he understands the right and knows that he is waiving it by pleading guilty.” Ballard at 479.
Notably, however, the Supreme Court went on to say that the “failure to so proceed will not
necessarily invalidate a plea.”
Id.
The Supreme Court stressed that the “underlying purpose” of
Crim.R. 11(C) “is to convey to the defendant certain information so that he can make a voluntary
and intelligent decision whether to plead guilty.”
Id.
“[W]hile it is recommended that a trial judge
stop after naming each constitutional right and ask if the defendant understands that right, the
failure to do so will not necessarily invalidate a plea.” State v. Holt, 9th Dist. Summit No. 21835,
2004-Ohio-3252
, ¶ 11, citing Ballard at 479-480. “[I]f the record shows that the trial court
engaged in a meaningful dialogue with the defendant which, in substance, explained the pertinent
constitutional rights in a manner reasonably intelligible to that defendant[,] then the court’s
acceptance of a guilty plea is to be affirmed.” (Internal quotations and citations omitted.) Holt at
¶ 9.
{¶9} A review of the record here reveals that Fleetwood’s assignment of error is without
merit. Fleetwood signed two forms that explained the rights he would be waiving by pleading
4
guilty to the various charges against him. Defense counsel represented to the trial court that he
had spent “significant time” with Fleetwood going over the terms of the plea negotiations prior to
Fleetwood signing the written plea agreement. At the plea hearing, the trial court outlined the
possible penalties Fleetwood could face upon entering guilty pleas. The trial court then informed
Fleetwood of all the constitutional rights that he would be waiving and asked, “[d]o you understand
that?” Fleetwood responded in the affirmative. Although stopping and addressing Fleetwood after
each right would have been the best practice, the trial court’s failure to do so does not invalidate
the plea, given that that the trial court engaged in a meaningful dialogue with Fleetwood that
allowed him to understand the rights he would be waiving by pleading guilty. See Holt at ¶ 9.
{¶10} To the extent that Fleetwood asserts that he was misinformed of his appellate rights
when the trial court informed him that he was “waiv[ing] [his] right to appeal in this case[,]” we
note that any issues in this regard were not prejudicial as Fleetwood was in fact able to challenge
the validity of his plea on appeal. See generally State v. Gegia,
157 Ohio App.3d 112
, 2004-Ohio-
2124, ¶ 18 (9th Dist.) (holding that a defendant who pleads guilty waives the right to challenge
any action taken by the trial court up to that point in the proceeding, unless it impacted the knowing
and voluntary character of the plea).
{¶11} Under these circumstances, we cannot say that the trial court failed to comply with
Crim.R. 11(C)(2)(c). The assignment of error is overruled.
III.
{¶12} Fleetwood’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
5
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
TEODOSIO, J.
SCHAFER, J.
CONCUR.
APPEARANCES:
NICHOLAS SWYRYDENKO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee. |
4,638,798 | 2020-12-02 16:13:30.201394+00 | null | http://www.supremecourt.ohio.gov/rod/docs/pdf/9/2020/2020-Ohio-5493.pdf | [Cite as In re M.T.,
2020-Ohio-5493
.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
IN RE: M.T. C.A. No. 29690
APPEAL FROM JUDGMENT
ENTERED IN THE
COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
CASE No. DN 17 02 0140
DECISION AND JOURNAL ENTRY
Dated: December 2, 2020
PER CURIAM.
{¶1} Appellant Mother appeals the judgment of the Summit County Court of Common
Pleas, Juvenile Division, that awarded legal custody of her child M.T. to the child’s paternal
grandparents (“Grandmother”, “Grandfather”, collectively “Grandparents”). This Court reverses
and remands for further proceedings.
I.
{¶2} Mother and Father are the biological parents of M.T. (d.o.b. 12/24/16). They were
never married and ended their romantic relationship during the case below, although they
maintained a close platonic relationship. Grandmother and Grandfather are the paternal
grandparents of the child.
{¶3} M.T. was born prematurely and at the parents’ home, as Mother did not realize that
she was pregnant. Immediately after his birth, the infant suffered two rib fractures due to
2
resuscitative efforts by paramedics. When the child was mature enough to be released from the
hospital, he went home with his parents.
{¶4} When Mother took the child for a well-baby check a few weeks later, the doctor
referred him for additional care based on the child’s weight loss. At that point, medical providers
determined that the child had suffered multiple additional fractures to his ribs, clavicle, and femur.
The injuries were diagnosed as nonaccidental trauma, and the hospital made a referral to Summit
County Children Services Board (“CSB” or “the agency”).
{¶5} Based on the nature of the child’s injuries, CSB filed a complaint alleging that M.T.
was an abused, neglected, and dependent child. The agency sought, and received with agreement
of Mother and Father, an emergency order of temporary custody of the child to Grandparents under
the protective supervision of CSB. Mother and Father later waived their rights to an adjudicatory
hearing and stipulated that M.T. was an abused, neglected, and dependent child.1
{¶6} After a dispositional hearing, the child was placed in the temporary custody of
Grandparents, under an order of protective supervision by CSB. Mother and Father were to have
supervised visitation as agreed by the parents and Grandparents. The juvenile court adopted the
agency’s case plan as the order of the court. The case plan goal was reunification with Mother and
Father and included the following objectives: (1) Mother and Father shall engage in an intensive
parenting class and demonstrate what they have learned through healthy interactions with the child;
(2) Mother, Father, or the designated caregiver shall meet all of the child’s basic needs, ensure that
M.T. receives timely medical care and participates in Help Me Grow services, and shall follow all
1
CSB dismissed one allegation of abuse pursuant to R.C. 2151.031(C), and one allegation
of neglect pursuant to R.C. 2151.03(A)(6). M.T. was adjudicated abused pursuant to R.C.
2151.031(B) and (D), neglected pursuant to R.C. 2151.03(A)(2) and (3), and dependent pursuant
to R.C. 2151.04(C).
3
recommendations of the professionals associated with the child; (3) Mother and Father shall obtain
a diagnostic assessment, follow all recommendations, and demonstrate emotional and behavioral
stability; and (4) Father shall obtain a chemical dependency assessment, follow all
recommendations, and submit random urine drug screens.
{¶7} The first semi-annual review filed by CSB indicated that the parents had made
“some” and “significant” progress on case plan objectives. In particular, Father had completed his
drug and alcohol assessment which indicated no concerns or chemical dependency diagnosis. All
of Father’s drug screens were negative. In addition, the review noted that the Akron Police
Department had closed its investigation because there was not enough evidence to charge anyone
with the child’s abuse. The identity of the perpetrator remained unknown.
{¶8} Prior to the one-year sunset date, Mother filed a motion for a six-month extension
of temporary custody, while CSB filed a motion for legal custody to Grandparents. After a hearing,
the magistrate denied CSB’s motion and granted Mother’s motion for a six-month extension. The
magistrate found that both parents had made significant progress on their case plan objectives and
that the relationship between the parents and Grandparents was “conflictual and tense.” Given the
parents’ significant case plan compliance, along with the admission by the guardian ad litem that
reunification of the child with his parents was “possibly” likely within six months, the magistrate
extended the period of temporary custody.
{¶9} Thereafter, CSB moved to modify visitation based on the parents’ case plan
compliance to allow unsupervised visits on a schedule to be agreed by the parents and custodians.
Mother moved for legal custody. Grandparents also moved for legal custody. More than a month
later, CSB filed a motion for legal custody to Grandparents and withdrew its prior motion for
unsupervised visitation. In support, the agency, while admitting that the parents had substantially
4
complied with their case plan objectives, expressed ongoing concerns for the child’s safety because
neither Mother, Father, nor any other person living in the household at the time of the abuse had
admitted responsibility for M.T.’s injuries.
{¶10} At a hearing, the guardian ad litem recommended a second six-month extension of
temporary custody based on the parents’ substantial additional progress on their case plan
objectives. The magistrate ordered the extension. In addition, as the parties further requested the
opportunity to mediate the matter, the magistrate scheduled a date for mediation. Mediation was
ultimately unsuccessful.
{¶11} Thereafter, the magistrate held a hearing on the three pending dispositional
motions: Mother’s motion for legal custody, Grandparents’ motion for legal custody, and CSB’s
motion for legal custody to Grandparents. After two days of hearings, during which both
Grandparents and CSB rested their cases and Mother presented a portion of her case-in-chief, the
magistrate expressed significant concerns regarding her ability to render an informed decision
given that (1) Mother and Father had never been allowed to have unsupervised visitation with the
child; (2) Grandfather had admitted that from the beginning he had intended to “take legal custody
of the Child[,]” and (3) the evidence indicated Grandfather’s unwillingness to facilitate Mother’s
and Father’s visitation with the child as ordered based on Grandfather’s belief that his schedule
took precedence over the parents’ visits with M.T. Accordingly, the magistrate continued the
hearing for a couple months and ordered that Mother and Father would have unsupervised
visitation from 8:00 a.m. until 7:30 p.m. at least two days a week. The caseworker and guardian
ad litem were to conduct at least one announced and one unannounced visit each month.
{¶12} At the next hearing date, the magistrate again continued the matter based on the
absence of Father’s attorney, the absence of the caseworker who was ill, and the lack of an updated
5
report by the guardian ad litem. After the hearing was concluded two months later, the magistrate
found that an award of legal custody to Mother was in the child’s best interest based on the
established parent-child bond, the fact that Mother’s physical and mental health was better than
Grandparents’, and the belief that Grandparents would not facilitate visitation between the parents
and child. Father was awarded visitation, and the magistrate expressed the hope that the parents
would allow Grandparents to visit with the child. The juvenile court adopted the magistrate’s
decision the same day.
{¶13} Grandparents filed timely objections, and Mother responded in opposition.
Emphasizing that Grandparents had provided for the child’s needs throughout nearly his entire
life, the juvenile court sustained the objections, granted legal custody to Grandparents, terminated
CSB’s protective supervision, and awarded unsupervised visitation to Mother and Father as the
parents and custodians might agree. In the absence of agreement, the court’s standard order of
visitation would apply. In addition, Grandparents were ordered to inform the parents regarding
the child’s appointments, education, and other matters without requiring prior inquiry by Mother
and Father. Mother appealed and raises one assignment of error for review.
II.
ASSIGNMENT OF ERROR
THE TRIAL JUDGE ABUSED HER DISCRETION BY OVERRULING THE
MAGISTRATE’S DECISION OF LEGAL CUSTODY TO [MOTHER] ON
OBJECTION. THE JUDGE’S DECISION IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶14} Mother argues that the juvenile court’s award of legal custody to Grandparents was
against the manifest weight of the evidence.
{¶15} For the reasons set forth in the separate opinions, the judgment of the juvenile court
is reversed and the cause remanded for further proceedings.
6
III.
{¶16} Mother’s sole assignment of error is sustained. The judgment of the Summit
County Court of Common Pleas, Juvenile Division, is reversed and the cause remanded for further
proceedings consistent with this opinion.
Judgment reversed,
and caused remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed equally to Appellees.
LYNNE S. CALLAHAN
FOR THE COURT
7
CALLAHAN, P.J., CONCURRING IN JUDGMENT ONLY.
{¶17} Although I agree with the other concurring opinion that supports reversal of the
juvenile court’s judgment, I cannot join in that opinion because I would reach that conclusion for
different reasons. Moreover, I disagree with the analysis and disposition of the appeal as proposed
by the dissent.
{¶18} While the appellate court generally reviews a trial court’s action regarding a
magistrate’s decision for an abuse of discretion, this Court must do so within the context of the
nature of the underlying matter. In re J.B., 9th Dist. Lorain No. 18CA011424,
2019-Ohio-1929
,
¶ 7, citing In re I.R., 9th Dist. Summit No. 27775,
2016-Ohio-2919
, ¶ 8. With that in mind, this
Court recognizes:
On appeal, an award of legal custody will not be reversed if the judgment is
supported by a preponderance of the evidence. Preponderance of the evidence
entails the greater weight of the evidence, evidence that is more probable,
persuasive, and possesses greater probative value. In other words, when the best
interest of the child is established by the greater weight of the evidence, the trial
court does not have discretion to enter a judgment that is adverse to that interest.
Thus, our standard of review is whether a legal custody decision is against the
manifest weight of the evidence.
(Internal citations and quotations omitted.) In re M.F., 9th Dist. Lorain No. 15CA010823, 2016-
Ohio-2685, ¶ 7.
{¶19} In considering whether the juvenile court’s judgment is against the manifest weight
of the evidence, this Court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the [finder
of fact] clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new [hearing] ordered.” (Internal quotations omitted.) Eastley v. Volkman,
132 Ohio St.3d 328
,
2012-Ohio-2179
, ¶ 20.
8
{¶20} “Following an adjudication of neglect, dependency, or abuse, the juvenile court’s
determination of whether to place a child in the legal custody of a parent or a relative is based
solely on the best interest of the child.” In re K.H., 9th Dist. Summit No. 27952,
2016-Ohio-1330
,
¶ 12. The statutory scheme regarding an award of legal custody does not include a specific test or
set of criteria, but Ohio courts agree that the juvenile court must base its decision to award legal
custody on the best interest of the child. In re B.B., 9th Dist. Lorain No. 15CA010880, 2016-Ohio-
7994, ¶ 18, quoting In re N.P., 9th Dist. Summit No. 21707,
2004-Ohio-110
, ¶ 23. In that regard,
the juvenile court is guided by the best interest factors enunciated in R.C. 2151.414(D) relating to
permanent custody. In re B.G., 9th Dist. Summit No. 24187,
2008-Ohio-5003
, ¶ 9, citing In re
T.A., 9th Dist. Summit No. 22954,
2006-Ohio-4468
, ¶ 17. Those factors include the interaction
and interrelationships of the child, the child’s wishes, the custodial history of the child, the child’s
need for permanence, and whether any of the factors in R.C. 2151.414(E)(7)-(11) are applicable.
R.C. 2151.414(D)(1)(a)-(e); see also In re B.C., 9th Dist. Summit Nos. 26976, 26977, 2014-Ohio-
2748, ¶ 16. In addition, the juvenile court may also look to the best interest factors in R.C.
3109.04(F)(1) for guidance. In re K.A., 9th Dist. Lorain Nos. 15CA010850, 15CA010860, 2017-
Ohio-1, ¶ 17. While some factors overlap with those above, others include the child’s adjustment
to his or her environment; the mental and physical health of all persons involved; the parents’
history of providing support and honoring companionship orders; whether a parent plans to or has
established a residence outside of Ohio; and certain indicia of violence, abuse, or neglect in any
household involved. R.C. 3109.04(F)(1). Such indicia include convictions relating to the abuse
or neglect of a child, as well as whether there exists any “reason to believe that either parent has
acted in a manner resulting in a child being an abused or a neglected child[.]” R.C.
3109.04(F)(1)(h).
9
{¶21} At the commencement of the legal custody hearing, M.T. was approximately 26
months old. The child has some special needs and developmental delays, which the child’s early
intervention specialist testified were possibly based on a combination of his premature birth, lack
of prenatal care as Mother did not realize that she was pregnant, and the injuries he sustained as
an infant. M.T. wears glasses, takes medication for slow gastric emptying, and suffers delays in
gross motor development, as well as in both expressive and receptive language. He receives
services from Help Me Grow and Stark County Board of Developmental Disabilities (“Stark DD”).
Included in those services are speech and physical therapies. At the time of the hearing, M.T. was
unable to express himself verbally. He had begun to use some limited sign language and gestures
to communicate his needs and feelings. His early intervention specialist at Stark DD testified that
the child’s needs are not extreme and that different caregivers would be able to learn how to meet
those needs over time. Mother verified that the child’s developmental services could be transferred
to Summit County Board of Developmental Disabilities if she regained legal custody.
{¶22} M.T. was in unmarried Mother’s legal custody for the first two months of his life,
at which time he was removed by CSB. Because of time spent in the hospital, the child spent only
approximately three weeks in the physical custody of his parents. Thereafter, M.T. has lived for
over two years with Grandparents and their two teenaged children. He is bonded with all four
family members in that home. Grandparents have consistently provided for M.T.’s medical and
therapeutic needs. They have not, however, prioritized the child’s emotional needs, as evidenced
in particular by Grandfather’s ongoing rancor towards the parents, as well as Grandfather’s
limitations on Mother’s and Father’s ability to visit with the child or attend appointments relevant
to the child.
10
{¶23} Mother and Father had supervised visitation in Grandparents’ home as the
temporary custodians allowed. Only when the magistrate continued the legal custody hearing for
the express purpose of granting the parents unsupervised visitation did Mother and Father finally
have the opportunity to spend time with M.T. outside of the hovering supervision of Grandparents.
For four months, Mother and Father enjoyed full days and overnights with the child in their shared
home.
{¶24} From the initiation of this case, the relationship between the parents and
Grandparents has been a stressful and contentious one. For the first couple months, Grandmother
maintained contact with Mother and Father and provided them with clear information regarding
the child’s appointments. Mother and Father attended those appointments unless they were at
work. For unknown reasons, Grandmother stopped providing the parents with information.
Grandfather admitted that he did not inform Mother and Father of any in-home or out-of-home
appointments or services regarding M.T. unless they explicitly asked. For example, neither parent
received information regarding the child’s in-home developmental services provided by Help Me
Grow for over a year. The child’s early intervention specialist testified that only Grandparents and
the CSB caseworker were present for the child’s initial assessment and that she was never provided
with any contact information for Mother or Father. The service coordinator always scheduled
subsequent sessions with Grandparents, and never contacted the parents.
{¶25} As Grandmother worked during the day and Grandfather was retired, Grandfather
was the primary caregiver for M.T. Mother and Father were required to coordinate their visits
with the child through Grandfather via text messages. Grandparents were aware that Mother’s
work schedule varied and that she received her schedule at the beginning of each week.
Accordingly, Mother texted Grandfather early each week with her availability for visits.
11
{¶26} Mother submitted into evidence copies of text messages showing that Grandfather
would routinely take a day or more to respond to Mother’s visitation requests. When he did
respond, he habitually approved fewer of the opportunities to visit than Mother requested without
explanation. Although the CSB caseworker directed Mother to increase the number of her weekly
visits with M.T. and to include a full day visit with the child, Grandfather never approved the total
number of visits Mother requested in any week. In addition, he rejected Mother’s first request for
an all-day visit. On the other hand, Mother neither inquired as to why some of her visitation
requests were rejected nor proposed alternate dates or times for visitation. In some cases,
Grandfather testified that the parents’ visitation requests conflicted with family activities involving
Grandparents’ household. Neither Grandparents nor Mother and Father proposed including the
parents in any of those activities.
{¶27} Grandparents scheduled the in-home service appointments to accommodate their
schedules, as well as the child’s waking schedule. Once Mother was finally informed regarding
the in-home sessions, she attended three. When she missed the next appointment for an unknown
reason, Grandparents again scheduled the sessions at a time when Mother would be unavailable
due to her work schedule.
{¶28} Mother was diagnosed with situational depression. Near the end of the case when
her stress level was high, she requested fewer visits to be able to engage in self-care. On one
occasion, Mother admitted to staying in bed all day. Mother, however, was fully compliant with
her counseling requirements and otherwise making good progress. Although the caseworker and
guardian ad litem acknowledged Mother’s progress, both expressed concerns that Mother was not
assertive with Grandfather when scheduling visitation. Mother explained that she had earlier faced
12
retribution when she was more assertive. Once, Grandfather threatened to terminate Mother’s
visitation when she arrived unannounced with Father during one of his visits.
{¶29} Grandfather clearly expressed to the parents that he was in control of their access
to the child. In fact, Father testified that Grandfather referred to himself as “God” regarding his
ability to control the interactions between the parents and M.T. The caseworker confirmed that
the parents were required to coordinate visitation with the temporary custodians, rather than with
the agency. There were many examples of times when Mother and Father were unable to see the
child because Grandparents’ schedule took precedence. Moreover, although the maternal
grandmother and a paternal cousin had been approved to supervise visits, Grandfather never
permitted such visits to occur.
{¶30} As to permanency planning for the child, CSB’s case plan goal throughout the case
was reunification with the parents. There is no dispute that Mother and Father completed their
objectives by obtaining all assessments, following through with counseling, completing parenting
classes, demonstrating the ability to meet their own and the child’s basic and special needs, and
demonstrating healthy and safe interactions with the child. Neither the caseworker nor the
guardian ad litem had any concerns regarding Mother’s or Father’s parenting abilities. In addition,
neither grandparent observed any concerns or risk to M.T. during either parent’s visitation with
the child.
{¶31} Nevertheless, there is no dispute that M.T. suffered abuse at the hands of someone
close to him during the three weeks he lived in a home with Mother, Father, the maternal
grandmother, and a maternal aunt. Beyond the two rib fractures sustained during resuscitative
efforts at birth, the child suffered 13 additional rib fractures, as well as a broken clavicle and femur.
Mother and Father stipulated to the allegations in the complaint, including the allegation that the
13
child’s injuries were in different stages of healing. The reasonable inference is that M.T. was
abused on multiple occasions. Both parents denied having caused the child’s injuries, while
neither could articulate any reasonable explanation for them. For example, Mother opined that the
child’s car seat harness was too tight when she drove over a rough roadway. The caseworker and
guardian ad litem remained concerned throughout the case that the identity of the perpetrator and
the circumstances underlying the abuse never came to light so that those issues might be addressed
directly.
{¶32} Although Mother and Father are no longer romantically involved with one another,
they remain close friends and share a residence with the intent to raise the child together. In their
current home, M.T. has his own bedroom with all necessary furnishings. The child has clothing
and toys in the parents’ home, as well. Father has a separate bedroom, while Mother sleeps in a
finished portion of the basement. Although Mother has no plans to leave the residence she shares
with Father, she has been approved and is on a waiting list for subsidized housing should the need
for that arise.
{¶33} Both parents have significant others. CSB has no concerns regarding those people
based on public records checks. Mother’s boyfriend, however, refused to speak with the
caseworker or guardian ad litem. Neither parent’s significant other spends the night at the parents’
home, although Mother admitted that she spends the night at her boyfriend’s home approximately
once a week. Neither Father’s girlfriend nor Mother’s boyfriend have met M.T. Mother and her
boyfriend have not discussed how or when the child might be incorporated into their relationship.
There was no evidence regarding what the parents’ significant others thought about Mother and
Father continuing to share a home, and occasionally a bed, albeit platonically.
14
{¶34} Mother and Father each work full time. Together, they are financially able to
provide for all the child’s needs. Their staggered work schedules allow one parent to care for M.T.
at all times except for a brief 2-hour period five days a week when their work schedules overlap.
Mother and Father have arranged for the maternal grandmother, a paternal relative, and some of
Mother’s coworkers to provide care for the child during those times. In addition, Mother is able
to leave her job during her shift as a waitress to care for the child in urgent or emergency situations.
At some point in the future, assuming good relations can be restored, Mother and Father would
consider letting Grandparents babysit M.T., as well. The guardian ad litem opined that cutting
Grandparents out of the child’s life would be traumatic for M.T. based on his established bond
with them.
{¶35} M.T. is too young to express his wishes regarding custody. Notwithstanding
Mother’s and Father’s case plan compliance, appropriate home, and implementation of proper
parenting skills, the guardian ad litem recommended legal custody to Grandparents based on the
lack of a formal lease for the home Father is renting from a family member, and the lack of time
the parents have had to parent the child on a day-to-day basis. Because of the child’s special needs,
the guardian opined that a consistent childcare plan is necessary. She conceded, however, that
other caregivers like the maternal grandmother and others could learn without difficulty how to
care for M.T. She simply emphasized that Grandparents are much more familiar with the child’s
routine.
{¶36} The guardian ad litem had no explanation for why there had been no discussions to
expand the parents’ visitation further despite how well their unsupervised visits had been going.
Because of her belief that the parents’ visitation might become more limited if left to the discretion
of Grandparents, the guardian ad litem recommended that Mother and Father be awarded court-
15
ordered visitation based on at least the standard order of visitation, to include holiday visits and
parameters for increasing visitation over time.
{¶37} In sustaining Grandparents’ objections and rejecting the magistrate’s decision to
award legal custody to Mother, the juvenile court placed enormous weight on the significant
amount of time M.T. had been in Grandparents’ custody. It downplayed, however, the roadblocks
Grandfather placed in the way of the parents’ reunification with the child when he rejected
numerous requests for visits and failed to inform Mother and Father regarding the child’s
appointments. Grandfather’s interference with the parents’ interaction with M.T. is even more
troubling given Grandfather’s admission that he planned from the very beginning of the case to
obtain legal custody of the child.
{¶38} More concerning is the juvenile court’s minimization of certain behaviors by
Grandparents. For example, although she did not live or work nearby, Grandmother admitted to
driving by the parents’ home every day at all hours of the day and night to see if Mother’s car was
there based on her belief that the parents were not really living together. Despite the parents’
assertions regarding their living situation and their demonstrated ability to keep the child safe,
Grandmother’s daily monitoring evidenced her pervasive lack of trust of Mother and Father.
{¶39} In addition, despite recognizing that the child’s injuries occurred as a result of
physical abuse, the juvenile court ignored Grandfather’s threat of physical violence towards Father
during the case. In fact, the trial court failed to mention Grandfather’s admission that he had
threatened for some undisclosed reason to shoot Father in the face.
{¶40} Perhaps most unclear is the lack of significance the juvenile court placed on
Grandfather’s current use of alcohol. After admitting that he had once been hospitalized based on
an alcohol-related incident, Grandfather testified that he remained sober for 20 years. However,
16
when M.T. was placed in his temporary custody, Grandfather admitted that he resumed drinking,
although he could not articulate why. Grandfather denied any current substance abuse issues.
Although neither the caseworker nor guardian ad litem reported any concerns for such issues in
Grandparents’ home, CSB did not investigate despite the recommendation of a professional at
Summit Psychological Associates that any caregiver for the child should be assessed for mental
health and substance abuse issues. At a minimum, Grandfather’s lapse from sobriety, in light of
his admitted history, threat of violence against Father, and controlling and contentious behavior
towards Mother and Father, should have raised some concern regarding his propriety as a primary
caregiver for the child.
{¶41} After a thorough review of the record, I would conclude that neither pending
dispositional option was in the best interest of the child at the time of the hearing. Significantly,
the magistrate who heard the evidence and the judge who reviewed the record arrived at disparately
reasoned conclusions. The magistrate’s articulated confidence that the best interest of the child
would be met by being returned to Mother’s legal custody was rivaled by that of the judge who
emphasized the significance of the child’s custodial history with Grandparents.
{¶42} Both the magistrate and judge ignored critical evidence which mitigated the bases
for their respective dispositional orders. For example, the magistrate minimized the child’s
multiple fractures as a result of abuse inflicted during the three weeks in the parents’ home before
his removal. The circumstances of those abusive acts remain unknown and, therefore, possibly
unresolved. Instead of focusing on the child’s future safety in an environment of uncertainty, the
magistrate viewed the efforts of various professionals involved in the case to identify the
perpetrator simply as “barriers for [the parents] to reunify.” The extent of M.T.’s injuries which
were sustained during indeterminate circumstances, in conjunction with the child’s ongoing
17
inability to self-protect or even communicate to report further incidents of abuse, weigh heavily in
this matter.
{¶43} On the other hand, the judge failed to mention Grandfather’s threat of physical
violence against Father during the case. The threat of shooting Father in the face cannot be ignored
when an abused child’s safety is at issue. Moreover, the judge downplayed Grandfather’s
resumption of alcohol use after a 20-year period of sobriety after an alcohol-related hospitalization,
notwithstanding the recommendation of a mental health professional that all caregivers for the
child submit to mental health and substance abuse assessments.
{¶44} In addition, it is difficult for me to reconcile the juvenile court’s finding that an
award of legal custody to Grandparents was in the child’s best interest despite its
acknowledgement of certain significant concerns. For example, the judge noted Grandfather’s
multi-day delays in returning Mother’s texts regarding her weekly visitation schedule. While the
judge found that Mother “was [n]ever denied a visit as a result of this delay[,]” Mother’s text
messages admitted into evidence clearly showed that Grandfather routinely rejected at least one
proposed visit each week. The judge also expressed “great[ ] concern” regarding Grandparents’
habit of withholding information from Mother and Father regarding the child and his appointments
“unless specifically requested” by the parents. The hurdles erected by Grandparents to interfere
with the parents’ residual rights demonstrate grave concerns about their willingness to facilitate
and preserve an ongoing relationship between the child and his parents.
{¶45} In my opinion, the record in this case demonstrates that neither proposed custodial
disposition was in the child’s best interest at the time of the hearing. Mother and Grandparents
each exhibit strengths and weaknesses in their respective abilities to raise the child. Unfortunately,
the ongoing concerns regarding both Mother and Grandparents preclude me from making a well-
18
substantiated determination based on the evidence adduced at the hearing that an award of legal
custody to either is in the child’s best interest. Accordingly, I would conclude that the juvenile
court’s judgment awarding legal custody to Grandparents is against the manifest weight of the
evidence. Because the preponderance of the evidence does not support granting legal custody to
either Mother or Grandparents, I would reverse the judgment and remand the cause for further
proceedings.
SCHAFER, J., CONCURRING IN JUDGMENT ONLY.
{¶46} Although I too agree that the juvenile court’s judgment should be reversed, I am
compelled to write separately because I would sustain Mother’s assignment of error and reinstate
the magistrate’s award of legal custody to Mother. As such, I disagree with the dissent’s proposal
to affirm the judgment which awarded legal custody to Grandparents.
{¶47} When considering a manifest weight of the evidence challenge, a reviewing court
“must always be mindful of the presumption in favor of the finder of fact.” Eastley v. Volkman,
132 Ohio St.3d 328
,
2012-Ohio-2179
, ¶ 21. In this case, the magistrate had the opportunity to
observe the parties’ and witnesses’ demeanor during the hearing. As such, the magistrate was in
the best position to assess credibility.
{¶48} The evidence supported the finding that an award of legal custody to Mother was
in the child’s best interest. The goal of the case plan was reunification, and Mother successfully
completed her case plan objectives. While not dispositive of the issue of custody, case plan
compliance is relevant to the juvenile court’s determination regarding the best interest of the child.
In re T.H., 9th Dist. Summit No. 28833,
2018-Ohio-1143
, ¶ 12. Mother and Father established a
home together and demonstrated a commitment to raise M.T. as a family. The parents’ home is
appropriate, and they can meet the child’s basic and special needs. The child remained safe while
19
with Mother and Father, and no one expressed any concerns regarding the parents’ interactions
with M.T. The child is comfortable with Mother and Father and the family unit shares a bond.
Grandparents provided good care for the child, but they remained hostile towards Mother and
Father. Grandfather in particular was never forthcoming regarding important information about
the child unless the parents expressly asked specific questions. In addition, Grandfather habitually
curtailed the parents’ opportunities to spend time with the child, even on holidays. Although
Mother and Father enjoyed more visitation with the child than they likely would have had, had
M.T. been in CSB’s temporary custody, they were never accorded the amount of visitation they
requested and CSB recommended.
{¶49} The evidence adduced at the hearing demonstrates shortcomings of all three
proposed legal custodians. Moreover, the nature of the abuse suffered by the child as a newborn
while residing in a home with four adults for only three weeks is extremely troubling and I do not
make light of it. It is important to note, however, that M.T. has suffered no harm throughout the
case while in the parents’ care, and none of the professionals involved in the case have expressed
any concerns about the care either parent has provided. Years have passed, and the situations
involving a newborn versus a preschooler are markedly different. Furthermore, the child will
continue to receive services from Help Me Grow and Stark or Summit DD whose providers are
mandatory reporters of suspected abuse. M.T. is almost four years old and will eventually attend
school. Such oversight, along with the child’s developing communication skills, confers greater
confidence in the decision to return the child to Mother.
{¶50} Given the evidence in this case, I would decline to second guess the magistrate as
the trier of fact in the best position to assess the evidence and credibility of the witnesses. The
preponderance of the evidence supports the magistrate’s finding that legal custody of M.T. to
20
Mother was in the child’s best interest. Mother’s successful completion of her case plan objectives,
in conjunction with her care of the child, demonstrated her ability to keep M.T. safe. Accordingly,
I would sustain Mother’s assignment of error and conclude that the juvenile court’s judgment
sustaining Grandparents’ objections and rejecting the magistrate’s decision was against the
manifest weight of the evidence.
CARR, J., DISSENTING.
{¶51} I respectfully dissent because I would affirm the juvenile court’s judgment
awarding legal custody of M.T. to Grandparents. Given her disregard of certain evidence, I would
not accord deference to the magistrate’s findings in this case.
{¶52} The goal of any agency case plan is to remedy the conditions that led to the child’s
removal from the home so that family reunification might be possible. The significant issue
underlying M.T.’s removal from his parents was the abuse the child suffered as an infant. R.C.
3109.04(F)(1)(h) requires the trial court to consider as a relevant best interest factor “ * * * whether
there is reason to believe that either parent has acted in a manner resulting in a child being an
abused child or a neglected child[.]” Even in the absence of the identification of a specific
perpetrator or incident, the trial court must consider whether any indicia of abuse or neglect
existed. See In re L.S., 9th Dist. Summit No. 28475,
2018-Ohio-5116
, ¶ 42-43.
{¶53} During a mere three weeks in the parents’ home and physical custody, M.T.
sustained multiple rib fractures, as well as a broken femur and clavicle, in various stages of healing,
indicating multiple incidents of abuse over a very short period of time. Throughout the lengthy
duration of the case, neither parent offered any reasonable insight as to how the child suffered
those injuries. Although encouraged by the caseworker, guardian ad litem, and even the Fast Track
service provider to cooperate with the police investigation, take polygraph examinations, or
21
otherwise acknowledge or admit the abuse, Mother and Father steadfastly denied any knowledge
of the circumstances that resulted in the child’s injuries. The only cause proposed by Mother was
that the child’s car seat strap was too tight, resulting in fractures as she drove with the child over
a rough roadway. Mother could not explain how that might have resulted in the myriad of fractures
sustained by the child over different periods of time. Nevertheless, both Mother and Father
stipulated that the child was abused. Given the child’s numerous fractures sustained during the
short time he resided with Mother and Father, it is more than reasonable to believe that one or both
of the parents’ actions resulted in M.T.’s abuse. See R.C. 3109.04(F)(1)(h). Unlike the juvenile
judge, the magistrate disregarded this best interest factor.
{¶54} Without any admission, or even a reasonable acknowledgement, of the child’s
abuse, the precise circumstances underlying the child’s abuse remained unknown throughout the
case. No perpetrator was identified. No person with any knowledge of the perpetrator came
forward, although I again emphasize that both parents stipulated that M.T. was in fact abused.
Without further clarification, however, no stressors or other issues which precipitated the abuse in
the parents’ home could, therefore, be identified and addressed via case plan objectives. As those
issues have necessarily not yet been identified, let alone resolved, there remains a risk to the child’s
safety in the parents’ home. The child has delayed communication skills and may, therefore, be
unable to relay fear or incidents of harm. He is still too young to self-protect. My concern is that
the child’s physical safety in the parents’ home is too speculative.
{¶55} Other conditions in the parents’ home also raise concerns for the child’s well-being.
Although Mother and Father have ended their romantic involvement, they claim to continue to
reside together to provide a stable family home for M.T. However, both parents have established
serious relationships with significant others. Neither of those people has met M.T. Mother’s
22
boyfriend was not cooperative with CSB in conducting a full background check because he did
not want to become involved in the case. Mother did not wish to involve her boyfriend in the
child’s life unless and until she received custody. Accordingly, although a public records check
did not identify any issues, the interactions and relationship between M.T. and his parents’
significant others remain unknown. It is also unknown how the significant others will react if
Mother and Father continue a long-term live-in relationship.
{¶56} I would also question Mother’s ability to provide M.T. with a stable home. During
the case below, the parents lived in at least three different residences. Mother was not on the lease
for any of those homes. I am also concerned regarding Mother’s childcare plans for the child. She
intends to have the maternal grandmother care for the child when the parents’ work schedules
overlap. It should not be ignored that the maternal grandmother was also living in the home where
the child suffered abuse. There is no evidence regarding the maternal grandmother’s role in or
knowledge of the child’s abuse. Accordingly, it remains unknown whether Mother’s childcare
plans will maintain M.T. in a safe environment. Although I acknowledge that the child suffered
no reported injuries during his unsupervised visits with his parents during the last few months of
the case, Mother demonstrated an ability to keep the child safe under very limited conditions,
rather than during long-term sustained periods of care.
{¶57} On the other hand, M.T. is well established in a safe and stable environment with
Grandparents where all the child’s needs are met. Despite evidence that Grandfather had resumed
using alcohol, he testified that he does not abuse it. Significantly, neither the caseworker nor the
guardian ad litem had any concerns that Grandfather’s use of alcohol was problematic. Moreover,
although Grandfather acknowledged threatening Father, even Father admitted that Grandfather
23
does not possess any firearms. There was no evidence that Grandfather ever physically assaulted
Father or any other person.
{¶58} Although Grandparents did not offer information to the parents regarding the
child’s appointments, they believed they were following the caseworker’s suggestion to require
Mother and Father to be more proactive in their involvement in the child’s life. CSB had concerns
that Mother in particular was not as assertive as she needed to be in her role as a parent.
{¶59} While Grandfather did not approve every time and date that Mother proposed for
visitation, he always allowed her to visit with M.T. a couple times a week. The parents received
more visitation time with the child than they would have if CSB were the temporary custodian due
to the parents’ and Grandparents’ flexibility. Mother and Father were awarded liberal visitation
by the juvenile court as the parties might agree. If they could not agree, then the parties would be
bound by the court’s standard order of visitation. Accordingly, the parents’ visitation rights were
protected and could be enforced through the contempt power of the juvenile court in the event that
Grandparents did not comply.
{¶60} Based on my thorough review of the record, I would conclude that the juvenile
court’s judgment was not against the manifest weight of the evidence. I believe that the
preponderance of the evidence supports the finding that an award of legal custody to Grandparents
was in the child’s best interest. Accordingly, I dissent from the majority opinions as I would affirm
the juvenile court’s judgment.
24
APPEARANCES:
EMILY M. HETE, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
LEONARD BREIDING, Attorney at Law, for Appellee.
JOY WAGNER, Attorney at Law, for Appellee.
PAMELA HAWKINS, Guardian ad Litem. |
4,638,799 | 2020-12-02 17:00:16.883665+00 | null | https://ecf.ca8.uscourts.gov/opndir/20/12/202301U.pdf | United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2301
___________________________
United States of America
Plaintiff - Appellee
v.
Angel Antonio Martinez-Torres, also known as Tony
Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: November 24, 2020
Filed: December 2, 2020
[Unpublished]
____________
Before BENTON, KELLY, and GRASZ, Circuit Judges.
____________
PER CURIAM.
Angel Antonio Martinez-Torres (Martinez) appeals the sentence the district
court1 imposed after he pled guilty to conspiracy to commit racketeering. Having
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
jurisdiction under
28 U.S.C. § 1291
, this court modifies the written judgment to
correct an apparent clerical error, and dismisses the appeal based on the appeal
waiver.
Counsel has moved for leave to withdraw and has filed a brief under Anders
v. California,
386 U.S. 738
(1967), acknowledging the appeal waiver, but
challenging the sentence as substantively unreasonable. The sentence imposed was
consistent with Martinez’s binding Federal Rule of Criminal Procedure 11(c)(1)(C)
plea agreement. Cf. United States v. Nguyen,
46 F.3d 781
, 783 (8th Cir. 1995)
(defendant who explicitly and voluntarily exposes himself to specific sentence may
not challenge that punishment on appeal). This court concludes that the appeal
waiver is enforceable, as Martinez’s challenge to the sentence falls within the scope
of the appeal waiver, the record shows that Martinez entered into the plea agreement
and the appeal waiver knowingly and voluntarily, and no miscarriage of justice
would result from enforcing the waiver. See United States v. Scott,
627 F.3d 702
,
704 (8th Cir. 2010) (de novo review); United States v. Andis,
333 F.3d 886
, 889-92
(8th Cir. 2003) (en banc) (appeal waiver will be enforced if appeal falls within scope
of waiver, defendant knowingly and voluntarily entered into waiver and plea
agreement, and enforcing waiver would not result in miscarriage of justice).
This court has reviewed the record independently under Penson v. Ohio,
488 U.S. 75
(1988), and found no non-frivolous issues outside the scope of the appeal
waiver. This court notes, however, that the written judgment contradicts the district
court’s oral order at sentencing by requiring that Martinez’s federal sentence run
consecutively to two undischarged terms of imprisonment in Buchanan County,
Missouri (Case Nos. 15BU-CR02611-01 and 15BU-CR01218-01). Because the
district court’s intent is clear from its oral pronouncement at sentencing, this court
concludes that remand for clarification is unnecessary. See
28 U.S.C. § 2106
(appellate court may modify any judgment brought before it for review); United
States v. Olson,
716 F.3d 1052
, 1056 (8th Cir. 2013) (“It is well settled . . . that a
district court’s oral sentence controls when it conflicts with the written judgment.”);
United States v. Jacobs,
508 Fed. Appx. 576
, 577-78 (8th Cir. 2013) (unpublished
-2-
per curiam) (affirming, but modifying judgment due to conflict between written
judgment and oral sentence--rather than waste judicial resources by remanding case-
-where district court’s intent was clear).
The written judgment is modified to reflect that the federal sentence shall run
concurrently with the two Buchanan County sentences. The appeal is otherwise
dismissed, and counsel’s motion to withdraw is granted.
______________________________
-3- |
4,654,743 | 2021-01-26 21:00:47.110582+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-16884.pdf | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY DESEAN ADAMS, No. 19-16884
Plaintiff-Appellant, D.C. No. 4:17-cv-00327-YGR
v.
MEMORANDUM*
PAUL MANAUT, Dr.; et al.,
Defendants-Appellees,
and
DAVID O. LIVINGSTON; et al.,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
California state prisoner Henry Desean Adams appeals pro se from the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s summary judgment in his
42 U.S.C. § 1983
action alleging
inadequate medical care while he was a pretrial detainee. We have jurisdiction
under
28 U.S.C. § 1291
. We review de novo. Gordon v. County of Orange,
888 F.3d 1118
, 1122 (9th Cir. 2018). We affirm.
The district court properly granted summary judgment because Adams failed
to raise a genuine dispute of material fact as to whether any defendant’s conduct in
the course of treating Adams was objectively unreasonable. See
id. at 1124-25
(setting forth objective deliberate indifference standard for Fourteenth Amendment
inadequate medical care claims brought by pretrial detainees).
The district court did not abuse its discretion by denying Adams’s motion
for appointment of counsel because Adams failed to demonstrate “exceptional
circumstances” warranting the appointment of counsel. See Cano v. Taylor,
739 F.3d 1214
, 1218 (9th Cir. 2014) (setting forth standard of review and “exceptional
circumstances” requirements for appointment of counsel).
We reject as meritless Adams’s contention that the district court erred in its
treatment of Adams’s claims unrelated to his medical care.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
587 F.3d 983
, 985 n.2 (9th Cir. 2009).
Adams’s opposed “motion to prevent irreparable harm” (Docket Entry No.
2 19-16884
25) is denied. Adams’s request to supplement his opening brief with additional
evidence, set forth in the motion, is denied. See United States v. Elias,
921 F.2d 870
, 874 (9th Cir. 1990) (“We do not consider documents not presented to the
district court.”).
AFFIRMED.
3 19-16884 |
4,654,744 | 2021-01-26 21:00:47.359247+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/20-15286.pdf | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLORIA PAREDES RUIZ, No. 20-15286
Plaintiff-Appellant, D.C. No. 1:17-cv-00180-BAM
v.
MEMORANDUM*
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Barbara McAuliffe, Magistrate Judge, Presiding
Argued and Submitted January 11, 2021
San Francisco, California
Before: WALLACE and M. SMITH, Circuit Judges, and RESTANI,** Judge.
Gloria Paredes Ruiz (Ruiz) appeals the judgment affirming the decision of
an administrative law judge (ALJ) denying her application for Supplemental
Security Income. We reverse and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
We have jurisdiction under
28 U.S.C. § 1291
. The court reviews a district
court’s order upholding the Social Security Commissioner’s (Commissioner)
denial of benefits de novo and reverses only if the decision is not supported by
substantial evidence or contains legal error. Garrison v. Colvin,
759 F.3d 995
,
1009–10 (9th Cir. 2014). The court is “constrained to review the reasons the ALJ
asserts” and “cannot rely on independent findings of the district court.” Stout v.
Comm’r Soc. Sec. Admin.,
454 F.3d 1050
, 1054 (9th Cir. 2006) (citation and
internal quotation marks omitted).
Once a claimant establishes that she has a severe impairment that prevents
her from performing past relevant work, the ALJ must make a determination that
she can perform some type of substantial gainful activity that “exist[s] in
significant numbers in the national economy” to find her not disabled.
20 C.F.R. §§ 404.1560
(c), 416.960(c); Lockwood v. Comm’r Soc. Sec. Admin.,
616 F.3d 1068
,
1071 (9th Cir. 2010). An ALJ can make this determination by taking into account
testimony from a vocational expert (VE) regarding the claimant’s capacity, but the
ALJ must “identify the types of jobs [the claimant can] perform notwithstanding
[the impairments] . . . . [and] ascertain whether those kinds of jobs exist[] in
significant numbers in the national economy.” Biestek v. Berryhill,
139 S. Ct. 1148
, 1152 (2019) (citations and internal quotation marks omitted). We give great
deference to an ALJ’s decision to rely on VE testimony because “the ALJ [is] in
2
the best position to evaluate and resolve any conflicting evidence concerning the
number of jobs in relevant occupations[.]” Shaibi v. Berryhill,
883 F.3d 1102
, 1110
(9th Cir. 2017).
At the administrative hearing, the ALJ heard testimony from a VE regarding
Ruiz’s past work and vocational capacity to perform other jobs. The ALJ
concluded that Ruiz could not perform past work, but that she was capable of
performing jobs requiring frequent hand use—counter attendant, cafeteria
attendant and sales attendant—and that these jobs exist in significant numbers in
the national economy. The parties agree with the district court’s holding that this
conclusion was error. The district court concluded that the error was harmless,
reasoning that the VE’s testimony regarding occupations for individuals who could
use their hands occasionally still supported the ALJ’s ultimate nondisability
determination.
The error is not harmless. The court “cannot affirm the decision of an
agency on a ground that the agency did not invoke in making its decision.” Stout,
454 F.3d at 1054
(citations and internal quotation marks omitted). An ALJ’s silent
disregard of evidence provides the court “nothing to review to determine whether
the error materially impacted the ALJ’s ultimate decision” and therefore, whether
the error was harmless. Stout,
454 F.3d at 1056
; see also Robbins v. Soc. Sec.
Admin.,
466 F.3d 880
, 884–85 (9th Cir. 2006) (declining to affirm the ALJ
3
decision because it lacked specific findings and reasoning, leaving the court no
meaningful explanation with which to assess its legitimacy). Where the
Commissioner seeks dismissal of an ALJ’s error as harmless and “invites this
Court to affirm the denial of benefits on a ground not invoked by the
Commissioner in denying the benefits originally, then we must decline.” Stout,
454 F.3d at 1054
(citation and internal quotation marks omitted).
The ALJ did not make any factual finding regarding Ruiz’s ability to
perform jobs that exist in a significant number, while using her hands occasionally.
Although the VE provided testimony that an individual with the same vocational
profile as Ruiz who was limited to occasional hand use could hypothetically
perform three jobs—counter clerk, page, and bakery worker—that testimony was
not credited by the ALJ. The ALJ did not mention this testimony, accorded it no
weight, and made no factual finding as to Ruiz’s ability to perform this work with
occasional use of her hands. Accordingly, the district court erred in concluding the
ALJ’s error was harmless because in doing so it affirmed the Commissioner’s
denial on a basis that the ALJ had not relied on. See SEC v. Chenery Corp.,
332 U.S. 194
, 196 (1947) (stating that “a reviewing court, in dealing with a
determination or judgment which an administrative agency alone is authorized to
make, must judge the propriety of such action solely by the grounds invoked by the
agency.”).
4
The district court shall remand this case to the ALJ for further proceedings
consistent with this disposition.
REVERSED AND REMANDED.
5 |
4,654,745 | 2021-01-26 21:00:47.444526+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-16915.pdf | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAIRILLIA TURNER, No. 19-16915
Plaintiff-Appellant, D.C. No. 5:19-cv-00993-LHK
v.
MEMORANDUM*
THE BANK OF NEW YORK MELLON,
FKA Bank of New York, As Trustee For
The Certificateholders of CWALT, Inc.,
Alternative Loan Trust 2007-AL1, Mortgage
Pass-Through Certificates, Series 2007-AL1,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Fairillia Turner appeals pro se from the district court’s judgment dismissing
her action alleging federal and state law claims arising from foreclosure-related
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
proceedings concerning a loan secured by a deed of trust on her property. We have
jurisdiction under
28 U.S.C. § 1291
. We review de novo a district court’s
dismissal based on res judicata. Stewart v. U.S. Bancorp,
297 F.3d 953
, 956 (9th
Cir. 2002). We affirm.
The district court properly dismissed Turner’s action as barred by res
judicata because Turner’s claims were raised, or could have been raised, in
Turner’s prior state court action, which involved parties in privity, and resulted in a
final judgment on the merits. See Adam Bros. Farming, Inc. v. County of Santa
Barbara,
604 F.3d 1142
, 1148-49 (9th Cir. 2010) (elements of res judicata under
California law); Fed’n of Hillside & Canyon Ass’ns v. City of Los Angeles,
126 Cal. App. 4th 1180
, 1202 (2004) (“Res judicata bars the litigation not only of
issues that were actually litigated but also issues that could have been litigated.”).
The district court properly denied Turner’s motion to remand her action to
state court because the district court had subject matter jurisdiction under
28 U.S.C. § 1331
and the action was properly removed under
28 U.S.C. § 1441
. See
D-Beam Ltd. P’ship v. Roller Derby Skates, Inc.,
366 F.3d 972
, 974 n.2 (9th Cir
2004) (denial of a motion to remand a removed case is reviewed de novo).
The district court did not abuse its discretion in denying Turner leave to
amend because amendment would have been futile. See Cervantes v. Countrywide
Home Loans, Inc.,
656 F.3d 1034
, 1041 (9th Cir. 2011) (setting forth standard of
2 19-16915
review and stating that leave to amend may be denied where amendment would be
futile).
We reject as meritless Turner’s contention that the district court failed to
liberally construe her complaint.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright,
587 F.3d 983
, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 19-16915 |
4,654,746 | 2021-01-26 21:00:47.566469+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/16-70345.pdf | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELADIO ALVAREZ-CRUZ, AKA Eladio No. 16-70345
Alvarez,
Agency No. A205-600-637
Petitioner,
v. MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Eladio Alvarez-Cruz, a native and citizen of Mexico, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum and withholding
of removal. We have jurisdiction under
8 U.S.C. § 1252
. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
questions of law, including the legal question of whether a particular social group
is cognizable, except to the extent that deference is owed to the BIA’s
interpretation of the governing statutes and regulations. Conde Quevedo v. Barr,
947 F.3d 1238
, 1241-42 (9th Cir. 2020). We review for substantial evidence the
agency’s factual findings.
Id. at 1241
. We deny the petition for review.
Substantial evidence supports the agency’s determination that Alvarez-Cruz
failed to establish he would be persecuted on account of a protected ground. See
Ayala v. Holder,
640 F.3d 1095
, 1097 (9th Cir. 2011) (even if membership in a
particular social group is established, an applicant must still show that “persecution
was or will be on account of his membership in such group”); Zetino v. Holder,
622 F.3d 1007
, 1016 (9th Cir. 2010) (an applicant’s “desire to be free from
harassment by criminals motivated by theft or random violence by gang members
bears no nexus to a protected ground”).
The BIA did not err in concluding that Alvarez-Cruz’s wealth-based social
group was not cognizable. See Diaz-Reynoso v. Barr,
968 F.3d 1070
, 1077 (9th
Cir. 2020) (in order to demonstrate membership in a particular social group, the
applicant must establish that the group is “‘(1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question’” (quoting Matter of M-E-V-G-,
26 I. & N. Dec. 227
, 237 (BIA 2014))); see also Reyes v. Lynch,
842 F.3d 1125
, 1137-38 (9th
2
Cir. 2016) (proposed group was not cognizable because it lacked particularity and
social distinction).
Thus, Alvarez-Cruz’s asylum and withholding of removal claims fail.
We reject Alvarez-Cruz’s contentions that the BIA erred by not analyzing
his arguments as to relocation and the immutability of his social group, see
Simeonov v. Ashcroft,
371 F.3d 532
, 538 (9th Cir. 2004) (agencies are not required
to decide issues unnecessary to the results they reach), and we do not consider the
merits of these issues because the BIA did not reach them, see Santiago-Rodriguez
v. Holder,
657 F.3d 820
, 829 (9th Cir. 2011) (review limited to the grounds relied
on by the BIA).
As stated in the court’s September 22, 2020 order, the temporary stay of
removal remains in place until issuance of the mandate.
PETITION FOR REVIEW DENIED.
3 |
4,654,747 | 2021-01-26 21:00:47.660608+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/18-72412.pdf | NOT FOR PUBLICATION FILED
JAN 26 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARWIN THEODORE, No. 18-72412
Petitioner, Agency No. A099-905-732
v.
MEMORANDUM*
MONTY WILKINSON, Acting Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2020
Pasadena, California
Before: BEA, THAPAR,** and COLLINS, Circuit Judges.
Petitioner Darwin Theodore seeks review of the denial by the Board of
Immigration Appeals (BIA) of his motion to reopen due to his failure to establish
changed country conditions and prima facie eligibility for relief. We have
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Amul R. Thapar, United States Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
jurisdiction under
8 U.S.C. § 1252
to review denials of motions to reopen. We
review denials of motions to reopen for abuse of discretion, “although [de novo]
review applies to the BIA’s determination of purely legal questions.”
Cano-Merida v. INS,
311 F.3d 960
, 964 (9th Cir. 2002) (citation omitted). Factual
findings are reviewed for substantial evidence. Sharma v. INS,
89 F.3d 545
, 547
(9th Cir. 1996). We deny the petition.
Because Theodore’s motion is based on changed country conditions, there is
no time limit within which he must have filed it.
8 C.F.R. § 1003.2
(c)(3)(ii). In
addition to establishing changed country conditions, Theodore must also establish
prima facie eligibility for relief. INS v. Abudu,
485 U.S. 94
, 104 (1988).
Here, the BIA observed that the evidence submitted by Theodore of violence
in Indonesia “largely reflects ongoing sporadic terrorism that existed before” his
2011 hearing. The BIA also characterized Theodore’s parents’ 2017 letter
describing worsening conditions as conclusory in nature and not reflective of a
material change in circumstances in Indonesia for Chinese Christians. The letter
stated that the “situation presently in Indonesia is not better than before.
Especially with [the 2016 protests against the ethnic Chinese Christian governor],
where he was accused of defying the religion of Islam, that resulted the [sic]
Christians are targeted by Front Defender of Islam (FPI), especially the Chinese
2
Christians.” Notably, the letter did not cite any other incidents, and did not reflect
that anyone they personally knew had been harmed by anti-Chinese or
anti-Christian sentiment. Thus, substantial evidence supports the BIA’s
determination that Theodore failed to establish changed country conditions.
Theodore also did not submit sufficient evidence of a risk of individualized
harm. In Salim v. Lynch,
831 F.3d 1133
(9th Cir. 2016), Salim offered evidence
supporting his claim of individualized risk of future persecution, namely “a letter
from his sister in Jakarta describing the recent targeting of their local church.”
Id. at 1136
. The 2017 letter from Theodore’s parents did not state that anyone they
personally knew had been targeted, but merely that they were “very worried that
the 1998 incident [(referring to a period of violence against Christians and
Chinese)] might happen again.” Theodore has therefore failed to establish prima
facie eligibility for relief.
Accordingly, the BIA acted within its discretion when it denied the motion
to reopen. Thus, the petition for review is DENIED.
3 |
4,669,325 | 2021-03-18 23:02:07.999156+00 | null | https://www.courts.ca.gov/opinions/nonpub/G058946.PDF | Filed 3/18/21 Red Hydrogen, LLC v. Evans CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RED HYDROGEN, LLC,
Plaintiff and Respondent, G058946
v. (Super. Ct. No. 30-2019-01078007)
MARK EVANS, OPINION
Defendant and Appellant.
Appeal from an order of the Superior Court of Orange County, Derek W.
Hunt, Judge. Affirmed.
Kring & Chung, Kenneth W. Chung and Mark M. DelRosario for
Defendant and Appellant.
Weeks Nelson, Gregory K. Nelson and Chandler G. Weeks for Plaintiff and
Respondent.
* * *
Plaintiff Red Hydrogen, LLC (Red Hydrogen), sued its former controller,
defendant Mark Evans, claiming Evans sent a defamatory e-mail to a potential investor,
resulting in Red Hydrogen losing the investment capital. Evans filed a special motion to
strike the first amended complaint under Code of Civil Procedure section 425.16 (the
anti-SLAPP statute), which the trial court denied. Evans appealed.
We affirm. Evans’s e-mail, which was sent to a single investor, did not
constitute participation in any public discussion and thus was not protected activity.
FACTS1
Red Hydrogen “is the designer, developer, manufacturer and seller of smart
phones sold under the RED® brand. [Red Hydrogen] sells products directly to end users,
as well as to retailers that in turn resell the phones and associated products.” Evans was
an employee of Red Hydrogen, functioning as controller in 2018 until he voluntarily
terminated his employment in December.
“Evans was initially a consultant for Red.com, LLC (a sister company of
[Red Hydrogen]) for a few years and then an employee of [Red Hydrogen]. When Evans
was hired as an employee he signed an Employment Agreement with Red Technologies,
LLC (now known as Red Hydrogen, LLC). . . . As part of that agreement, Evans agreed
to maintain and keep confidential certain confidential information of [Red Hydrogen].
[¶] As the controller of Red Hydrogen LLC, Evans was in a position of trust and
confidence.”
1 The following facts are taken from the evidence Red Hydrogen submitted
in opposition to the anti-SLAPP motion.
2
Evans became disgruntled sometime during 2018 and particularly did not
like certain executives of Red Hydrogen, which he expressed during his exit interview.
At some unknown date, Evans created an e-mail address with the intent to complain to
third parties about Red Hydrogen and its management.
From that e-mail address, on January 2, 2019, Evans anonymously sent the
following e-mail to a potential Red Hydrogen investor: “Thank you for the assurance. A
friend of mine was fired by Jim, because he saw Jim and his wife at the courthouse and
made a joke about them getting divorced. I apologize for the slow response. I’ve been on
vacation for the Christmas break.
“* Ask for a list of employees and contractors, and their salaries. Many
sales people are treated as contractors, but are employees. It will take only one of these
to turn the company into the IRS.
“* Interview privately key employees in operations, marketing, sales, IT,
Human Resources and finance. Especially spend time with the guy in charge of
warranties and returns (these percentages are much higher than forecasted).
“* Ask for copies of all employee exit interviews.
“… … …
“*Have them redo the forecast based on lower actual sales and not just
push out the forecast.
“* Visit the top AT&T and Verizon stores and get their feedback on the
Hydrogen One. I’m sure you have read the negative reviews online.
“* Ask for the ROI on key marketing plans including the vans.
“Red Digital Cinema and Hydrogen are run exactly the same way and you
can learn a lot by looking at Red Digital Cinema. Red Digital Cinema has never been
profitable. Red has a history of pervasive mismanagement. Jim will use your investment
to transfer money back to Red Digital Cinema. If you invest I would recommend that you
put restrictions on your investment and they not be allowed to transfer any of your funds
3
to Red Digital Cinema. Paying a royalty to Red Digital Cinema makes no sense. The Red
name has no benefit in the consumer world. Paying for Jim’s aircraft expense has no
benefit to Hydrogen.
“… … …
“Based on the low sales you should get a higher ownership percent than
you originally negotiated. Without you Hydrogen will not succeed, so you are in the
driver’s seat.
“The best of luck to you.”
This e-mail was sent in the midst of Red Hydrogen’s negotiations with this
potential investor, just prior to funding. After this e-mail, however, the potential investor
delayed and ultimately refused to go through with the investment.
Red Hydrogen’s first amended complaint asserted causes of action for
defamation per quod, trade libel, breach of contract, breach of duty of loyalty, intentional
interference with prospective business, and negligent interference with prospective
business. Evans responded with an anti-SLAPP motion. The court denied the motion,
finding that while the alleged conduct may constitute protected activity, Red Hydrogen
had made a sufficient showing on the merits. Evans appealed.
DISCUSSION
“A cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.” (Code
Civ. Proc., § 425.16, subd. (b)(1), italics added.) The anti-SLAPP statute contemplates a
two-part analysis: first, determining whether the cause of action arises from protected
4
activity; second, if so, determining whether there is a probability of prevailing on the
claim. We review a trial court’s ruling denying an anti-SLAPP motion de novo. (Dual
Diagnosis Treatment Center, Inc. v. Buschel (2016)
6 Cal.App.5th 1098
, 1103.) Because
we conclude below that Evans’s e-mail did not constitute protected activity, we need not
address whether Red Hydrogen has shown a probability of prevailing.
The anti-SLAPP statute defines an “‘act in furtherance of a person’s right
of petition or free speech under the United States or California Constitution in connection
with a public issue’” (which we refer to simply as protected activity) as falling into one of
four categories of speech. (Code Civ. Proc., § 425.16, subd. (e).) Only one of those
categories is relevant here: “(4) any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in connection with
a public issue or an issue of public interest.” (Ibid.) Our high court recently provided a
thorough analysis of this catchall provision in FilmOn.com Inc. v. DoubleVerify
Inc. (2019)
7 Cal.5th 133
(FilmOn).
“The inquiry under the catchall provision . . . calls for a two-part analysis
rooted in the statute’s purpose and internal logic. First, we ask what ‘public issue
or . . . issue of public interest’ the speech in question implicates—a question we answer
by looking to the content of the speech. [Citation.] Second, we ask what functional
relationship exists between the speech and the public conversation about some matter of
public interest.” (FilmOn, supra, 7 Cal.5th at pp. 149-150.) “[V]irtually always,
defendants succeed in drawing a line—however tenuous—connecting their speech to an
abstract issue of public interest.” (Id. at p. 150.) “But the catchall provision demands
‘some degree of closeness’ between the challenged statements and the asserted public
interest.” (Ibid.) “‘[I]t is not enough that the statement refer to a subject of widespread
public interest; the statement must in some manner itself contribute to the public
debate.’” (Ibid.) “What it means to ‘contribute to the public debate’ [citation] will
perhaps differ based on the state of public discourse at a given time, and the topic of
5
contention. But ultimately, . . . we examine whether a defendant—through public or
private speech or conduct—participated in, or furthered, the discourse that makes an issue
one of public interest.” (Id. at pp. 150-151.) “[A] court must consider whether a
statement—including the identity of its speaker, for example, or the audience sought—
contributes to or furthers the public conversation on an issue of public interest. It is by
carefully observing this wedding of content and context that we can discern if conduct is
‘in furtherance of’ free speech ‘in connection with’ a public issue or issue of public
interest.” (Id. at p. 154.)
Turning to the context here, we conclude Evans’s e-mail to the potential
investor did not contribute to a public debate. Evans claims the e-mail and Red
Hydrogen’s cause of action touched on numerous topics of public interest, such as
whether Red Hydrogen committed financial crimes, other forms of corporate
malfeasance, and the quality of Red Hydrogen’s consumer products. Our review of the e-
mail, however, persuades us that Evans was not actually participating in a public debate
on these topics. Instead, the context indicates Evans had a singular aim: to dissuade a
particular investor. The e-mail he wrote was to a single investor group and was
apparently never meant to be made public. He sent the e-mail anonymously. And the
timing indicates it was engineered to torpedo a particular investment. Quite simply, this
was insider information being disclosed in a purely private conversation for the sole
purpose of disrupting a particular private investment.
Our conclusion is supported by our high court’s analysis of the facts in
FilmOn. There, the defendant DoubleVerify Inc. (DoubleVerify), was a company that
monitors the content of internet Web sites and then reports back to advertisers to ensure
the advertisements are not associated with unwanted content. They did this by issuing
confidential reports to their clients on particular Web sites. (FilmOn, supra, 7 Cal.5th at
p. 141.) The plaintiff FilmOn.com Inc. (FilmOn), was the owner of an internet service
that DoubleVerify had, in private reports to clients, tagged as containing adult content
6
and being associated with copyright infringement, leading to a loss of advertising revenue
for FilmOn. (Ibid.) The trial court granted DoubleVerify’s anti-SLAPP motion (id. at p.
142), but our Supreme Court reversed. It concluded it was “plain enough” that
DoubleVerify did not contribute to a public debate: “DoubleVerify issues its reports not
to the wider public—who may well be interested in whether FilmOn hosts content
unsuitable for children or whether its streaming platform infringes copyright—but
privately, to a coterie of paying clients. Those clients, in turn, use the information
DoubleVerify provides for their business purposes alone. The information never entered
the public sphere, and the parties never intended it to.” (Id. at p. 153.)
As our high court qualified its own opinion in FilmOn, so we qualify our
opinion here: “no single element is dispositive.” (FilmOn, supra, 7 Cal.5th at p. 153.) It
is certainly possible to participate in a public debate via a private conversation. (Id. at p.
146.) More obviously, one can contribute to a public debate anonymously, as often
happens on Internet message boards and the like. What makes our case unique is its
context: the impending culmination of a private investment and the obvious intent to
disrupt that investment. Because Evans’s statement was not protected activity, the anti-
SLAPP statute did not apply. The anti-SLAPP motion was properly denied.
7
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Red Hydrogen shall
recover its costs incurred on appeal.
IKOLA, J.
WE CONCUR:
ARONSON, ACTING P. J.
FYBEL, J.
8 |
4,638,804 | 2020-12-02 17:02:23.884676+00 | null | https://www.3dca.flcourts.org/pre_opinion_content_download/692467 | Third District Court of Appeal
State of Florida
Opinion filed December 2, 2020.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1328
Lower Tribunal Nos. 16-1219 & 14-13703
________________
The Shir Law Group, P.A., et al.,
Petitioners,
vs.
Dario Carnevale, Esq., et al.,
Respondents.
A Case of Original Jurisdiction – Prohibition.
ADR Miami, LLC, and Juan Ramirez Jr.; Robert E. Menje, PLLC, and Robert
E. Menje (Pembroke Pines), for petitioners.
Kozyak Tropin & Throckmorton, LLP, and Javier A. Lopez, Tal J. Lifshitz,
and John I. Criste, Jr., for respondents.
Before EMAS, C.J., and LOGUE and HENDON, JJ.
LOGUE, J.
In this case’s fourth interlocutory appearance in this Court, 1 Petitioners The
Shir Law Group, P.A., Guy M. Shir, Esq., and Stuart J. Zoberg, Esq. (collectively,
“the Shir Lawyers”), seek a writ of prohibition to disqualify the trial judge from
further presiding over this action.
The Shir Lawyers argue they have a well-founded fear that the trial judge will
not be fair and impartial based upon certain comments made by the judge. The
comments were made during a two-day evidentiary hearing on their opponents’
claim that the Shir Lawyers committed perjury in responding to an interrogatory.
In a motion to the trial court, the Shir Lawyers claimed knowledge of the
redacted, confidential parts of a settlement agreement that they had unsuccessfully
attempted to obtain through discovery. The interrogatory at issue asked the source
of their knowledge. In their answer, the Shir Lawyers identified the source as their
trial lawyer and asserted the attorney client privilege. At the hearing, after Mr. Shir
and Mr. Zoberg had completed their testimony, but while several other witnesses
remained to be called, the trial court made the following comments to the Shir
Lawyers’ counsel:
1
See Shir Law Grp., P.A. v. Carnevale, 45 Fla. L. Weekly D1575 (Fla. 3d DCA July
1, 2020) (denying the Shir Lawyers’ petition for prohibition to disqualify the trial
judge); Shir Law Grp., P.A. v. Carnevale,
302 So. 3d 349
(Fla. 3d DCA 2019)
(denying the Shir Lawyers’ emergency petition for prohibition to disqualify the trial
judge); Shir Law Grp., P.A. v. Carnevale,
271 So. 3d 152
, 155 (Fla. 3d DCA 2019)
(granting the Shir Lawyers’ petition to quash carte blanche discovery order).
2
[G]etting back to your last statement, I am troubled by the fact
that your client would testify to having knowledge of what can only be
construed as part of what is contained in the unredacted settlement
agreement from [a female attorney for a third party]. Yet, there is a
sworn statement where he says it is attorney-client privilege. She does
not represent him.
Secondly, there is testimony that he just stated that any
information that he had regarding that document or the terms thereof
came from conversations with you as his attorney. So that alone makes
me question the veracity and truthfulness of his testimony.
I am going to continue listening to the rest of this afternoon’s
questions and I will be able to make a determination on this issue once
I hear all of the information.
The test for determining the legal sufficiency of a motion
for disqualification is whether the facts alleged would cause a reasonably prudent
person to fear that he or she could not get a fair and impartial trial. The analysis must
focus on what a reasonably prudent person would believe, not on the subjective fears
of the movant or the subjective intent of the judge. Law Offices of Herssein &
Herssein, P.A. v. United Servs. Auto. Ass’n,
229 So. 3d 408
, 409 (Fla. 3d DCA
2017), approved,
271 So. 3d 889
(Fla. 2018).
The Shir Lawyers assert that the trial judge’s comments fall within the line of
authority holding that disqualification is required when the comments made by the
judge indicate that he or she has prejudged the case or is biased. See Pilkington v.
Pilkington,
182 So. 3d 776
, 779 (Fla. 5th DCA 2015). Specifically, the Shir Lawyers
cite to the principle that
3
[t]he judge’s commentary concerning the credibility of the petitioner .
. . , before the completion of the petitioner’s direct examination or
presentation of any witnesses in support of her case, is sufficient to
create in a reasonably prudent person a well-founded fear that she
would not receive a fair hearing before this judge.
S.S. v. Dep’t of Children & Families,
298 So. 3d 1184
, 1185 (Fla. 3d DCA
2020) (citing Brown v. St. George Island, Ltd.,
561 So. 2d 253
, 257 n.7 (Fla. 1990)).
This line of authority, however, is tempered by a further line of cases. “While
a judge may not prejudge a case, it is well-settled that a judge may form mental
impressions and opinions during the course of hearing evidence.” Erlinger v.
Federico,
242 So. 3d 1177
, 1181 (Fla. 1st DCA 2018) (citing Lukacs v. Ice,
227 So. 3d 222
, 224 (Fla. 1st DCA 2017)). The comments here—made only after the two
main witnesses, Mr. Shir and Mr. Zoberg, had completed their testimony—bore
narrowly on the issue before the trial court, namely whether the Shir Lawyers had
committed perjury in their answers to the interrogatory. See Lukacs,
227 So. 3d at 224
(contrasting circumstances where disqualification was appropriate because the
comments on credibility were unnecessary to resolve the issue before the court to
circumstances where disqualification was not appropriate “where a judge’s
comments are directed to the issue the court is currently handling”).
Moreover, the trial court’s comments were coupled with the following
statement: “I am going to continue listening to the rest of this afternoon’s questions
and I will be able to make a determination on this issue once I hear all of the
4
information.” Thus, the court qualified its comments with an indication that it was
withholding judgment until all evidence has been presented and considered. On
balance, a reasonably prudent person would understand that the trial court’s
comments as no more than the sharing of the sort of interim mental impressions
which are a natural part of the decision making process—and not as an indication
that the trial judge had prejudged the case. Pilkington, 182 So. 3d at 779.
Petition denied.
5 |
3,096,999 | 2015-10-16 04:41:53.697904+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=3775&Index=%5c%5cOCA%2dPSQL01%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa13%5cOpinion | NUMBER 13-11-00624-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CORPUS CHRISTI INDEPENDENT SCHOOL DISTRICT, Appellant,
v.
TL MECHANICAL, Appellee.
On appeal from the County Court at Law No. 4
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Vela
This is an interlocutory appeal from a trial court order denying appellant, Corpus
Christi Independent School District's ("CCISD"), plea to the jurisdiction. CCISD raises a
single issue on appeal contesting the trial court's ruling. We affirm.
I. BACKGROUND
Appellee TL Mechanical and CCISD entered into a contract with respect to air
conditioning system renovations at Mary Carroll High School in Corpus Christi. After TL
Mechanical's bid had been accepted and the contract had been entered into, an issue
arose with respect to alleged deficiencies of the Carrier Corporation's equipment that was
being utilized, because Carrier was unable to provide factory installed ventilation controls
on the system. The evidence also reflected that Carrier was listed in the project
specifications as one of four acceptable equipment suppliers. The CCISD engineer in
charge of the project refused to accept the Carrier controls and required TL Mechanical to
use equipment provided by McQuay. As a result, TL Mechanical incurred an additional
$175,000 for purchase of the equipment. TL Mechanical filed suit against CCISD,
alleging that the school district breached its contract by not issuing a formal change order
or construction change directive, and sought, as damages, the additional costs
associated with utilizing the McQuay equipment. CCISD filed a plea to the jurisdiction,
which the trial court denied after a hearing. CCISD then filed this interlocutory appeal.
II. STANDARD OF REVIEW
A plea to the jurisdiction based on governmental immunity challenges a trial court's
subject matter jurisdiction. State v. Holland,
221 S.W.3d 639
, 642 (Tex. 2007). We
consider a trial court's ruling on a plea to the jurisdiction under a de novo standard.
Id. Generally, a
plaintiff bears the burden to plead facts affirmatively demonstrating
subject matter jurisdiction.
Id. A plea
to the jurisdiction can challenge either the
sufficiency of the plaintiff's pleadings or the existence of jurisdictional facts. Tex. Dept. of
2
Parks & Wildlife v. Miranda,
133 S.W.3d 217
, 226–27 (Tex. 2004). When a plea attacks
the pleadings, the issue turns on whether the pleader has alleged sufficient facts to
demonstrate subject matter jurisdiction.
Id. In such
cases, we construe the pleadings
liberally in the plaintiff's favor and look for the pleader's intent. City of Carrollton v.
Singer,
232 S.W.3d 790
, 795 (Tex. App.—Fort Worth 2007, pet. denied). When the
pleadings neither allege sufficient facts nor demonstrate incurable defects, the plaintiff
should usually be afforded an opportunity to amend. County of Cameron v. Brown,
80 S.W.3d 549
, 555 (Tex. 2002). However, if the pleadings affirmatively negate jurisdiction,
then the plea to the jurisdiction may be granted without leave to amend.
Id. When a
plea to the jurisdiction challenges the existence of jurisdictional facts, a court may
consider evidence in addressing the jurisdictional issues.
Miranda, 133 S.W.3d at 227
.
If the evidence reveals a question of fact on the jurisdictional issue, the trial court cannot
grant the plea, and the issue must be resolved by a fact finder.
Id. at 227–28.
Governmental immunity encompasses two components: immunity from liability
and immunity from suit. Tooke v. City of Mexia,
197 S.W.3d 325
, 332 (Tex. 2006).
When a governmental entity enters into a contract, it waives immunity from liability under
the terms of the contract; however, entering into a contract does not also act as a waiver
of immunity from suit.
Id. A waiver
of immunity from suit may occur, even in the breach
of contract context, only if the legislature has waived such immunity by clear and
unambiguous language.
Id. at 332–33.
3
III. ANALYSIS
CCISD's primary arguments are that TL Mechanical did not have an obligation to
issue a formal change order or construction change directive, thus there was no breach of
contract and the damages that TL Mechanical seeks are not recoverable.
Section 271.152 of the local government code provides a limited waiver of
immunity for local governmental entities that enter into certain contracts. Sharyland
Water Supply Corp. v. Alton,
354 S.W.3d 407
, 411 (Tex. 2011); see TEX. LOC. GOV'T CODE
ANN. § 271.152 (West 2005). The statute provides:
A local governmental entity that is authorized by statute or the constitution
to enter into a contract and that enters into a contract subject to this
subchapter waives sovereign immunity to suit for the purpose of
adjudicating a claim for breach of the contract, subject to the terms and
conditions of this subchapter.
TEX. LOC. GOV'T CODE ANN. § 271.152. According to its plain language, the statute
unambiguously waives a governmental entity's immunity from suit for breach of certain
written contracts. Ben Bolt–Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political
Subdivs. Prop./Cas. Joint Self–Ins. Fund,
212 S.W.3d 320
, 327 (Tex. 2006). The
Legislature enacted section 271.152 "to loosen the immunity bar so that all local
governmental entities that have been given or are given the statutory authority to enter
into contracts shall not be immune from suits arising from those contracts."
Id. For section
271.152's waiver of immunity to apply, however, three elements must
be established: (1) the party against whom the waiver is asserted must be a "local
governmental entity" as defined by section 271.151(3); (2) the entity must be authorized
by statute or the Constitution to enter into contracts; and (3) the entity must in fact have
4
entered into a contract that is "subject to this subchapter," as defined by section
271.151(2). TEX. LOC. GOV'T CODE ANN. §§ 271.151–.152. A contract "subject to this
subchapter" is defined as "a written contract stating the essential terms of the agreement
for providing goods or services to the local governmental entity that is properly executed
on behalf of the local governmental entity."
Id. § 271.151(2).
Here, all three elements are present. First, waiver of immunity in section 271.152
applies to "local governmental entities," which include municipalities, public school and
junior college districts, and various special-purpose districts and authorities.
Id. § 271.151(3).
There is no dispute that CCISD is a public school district expressly included
in the definition of a local government entity. Second, CCISD has statutory authority to
enter into contracts pursuant to section 11.1511(c)(4) of the Texas Education Code,
which authorizes an independent school district's board of trustees to "enter into contracts
as authorized under this code or other law and delegate contractual authority to the
superintendent as appropriate." TEX. EDUC. CODE ANN. § 11.1511(c) (4) (West Supp.
2011).
The third element requires the parties to enter into a "contract subject to this
subchapter."
Id. § 271.151(2).
In order for a contract to be subject to section 271.152's
waiver of immunity, it must: (1) be in writing, (2) state the essential terms of the
agreement, (3) provide for goods or services, (4) to the local governmental entity, and (5)
be executed on behalf of the local governmental entity.
Id. The construction
contract
between TL Mechanical and CCISD, signed by both the president and secretary of the
school board, its attorney and its superintendent, was attached to TL Mechanical's
5
pleadings. It is a contract for goods and services to be provided to CCISD. This
jurisdictional evidence, therefore, reflects "a written contract stating the essential terms of
the agreement for providing goods or services to the local government entity" that was
"properly executed on behalf of the local governmental entity."
Id. § 271.151.
Section 271.153 of the statute limits the damages that can be awarded. See
id. § 271.153.
The purpose of section 271.153 is to limit the amount due by a governmental
agency on a contract once liability has been established, not to foreclose the
determination of whether liability exists. Kirby Lake Dev. Ltd. v. Clear Lake City Water
Auth.,
320 S.W.3d 829
, 838 (Tex. 2010). In City of Houston v. Southern Electrical
Services, Inc., the court stated that, in a case involving a plea to the jurisdiction, the court
does not adjudicate the substance of the case.
273 S.W.3d 739
, 744 (Tex.
App.—Houston [1st Dist.] 2008, pet. denied). Rather, we determine if a court has the
power to adjudicate a case.
Id. "Section 271.153
does not retract the privilege granted
in section 271.152 to adjudicate the claim for breach, if a plaintiff alleges facts to support
such a claim and seeks recovery only of damages to the extent allowed."
Id. The jurisdictional
plea should be decided without delving into the merits of the case. Bland
Indep. Sch. Dist. v. Blue,
34 S.W.3d 547
, 554 (Tex. 2000).
While CCISD urges that TL Mechanical has not alleged a breach of contract, the
jurisdictional evidence reflected that Carrier was listed in the project specifications as one
of four acceptable equipment suppliers. TL Mechanical urged in its pleadings that
CCISD never issued a formal change order or construction change directive to
accommodate the deviation from the original bid. TL Mechanical asserted that the
6
failure to issue the formal change order cost TL Mechanical the price difference of the
upgraded material. Thus, the pleadings reflect that TL Mechanical is filing suit for breach
of contract. CCISD's argument, in fact, goes to the merits of the case rather than the
jurisdictional issue. Whether CCISD can be held responsible for any alleged breach of
the parties' contract, however, is not within the scope of the governmental immunity
question presented here. See e.g., City of Houston v. Clear Channel Outdoor, Inc.,
233 S.W.3d 441
, 446 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (determining that
whether the City's offer to purchase the plaintiff's billboard was binding under the City
charter implicated the merits of the case and did not defeat waiver of immunity.); see also
LaMarque Ind. School Dist. v. Healthy Resources Enter., Inc., No. 14-10-01269-CV,
2011 WL 5926179
, at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.)
(holding that whether the school district could be held liable for breach of agreement for
failure to comply with specific terms applicable to amendment or work orders was not
within the scope of the question of governmental immunity).
CCISD also argues that the damages sought are not recoverable because TL
Mechanical is seeking lost profits. However, TL Mechanical pleaded that the "amount of
damages sought does not include any amount for 'lost profits.'" The damages it seeks
are based on the price difference between the Carrier equipment and the McQuay
equipment. These are direct damages stemming from the alleged breach.
Thus, we hold that TL Mechanical alleged facts sufficient to invoke the
government's waiver of immunity for the purpose of adjudicating a breach of contract
claim under local government code section 271.152. CCISD's issue is overruled.
7
IV. CONCLUSION
Having overruled CCISD's sole issue, we affirm the trial court's order denying the
plea to the jurisdiction.
ROSE VELA
Justice
Delivered and filed the
29th day of March, 2012.
8 |
4,654,749 | 2021-01-26 21:00:47.947429+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/18-15080.pdf | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY IVAN BOBADILLA, No. 18-15080
Plaintiff-Appellant, D.C. No. 2:16-cv-00226-GEB-EFB
v.
MEMORANDUM*
JOE A. LIZARRAGA, Warden; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
California state prisoner Anthony Ivan Bobadilla appeals pro se from the
district court’s judgment dismissing his
42 U.S.C. § 1983
action alleging
constitutional claims arising from a patdown search. We have jurisdiction under
28 U.S.C. § 1291
. We review de novo a dismissal under 28 U.S.C. § 1915A.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Resnick v. Hayes,
213 F.3d 443
, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Bobadilla’s Fourth Amendment claim
because Bobadilla failed to allege facts sufficient to show that the patdown search
conducted by defendant Guzman was unreasonable. See Grummett v. Rushen,
779 F.2d 491
, 496 (9th Cir. 1985) (patdown searches that included the groin area “are
not so offensive as to be unreasonable under the fourth amendment”).
The district court properly dismissed Bobadilla’s Eighth Amendment claim
based on the patdown search because Bobadilla failed to allege facts sufficient to
show the infliction of severe psychological pain. See Watison v. Carter,
668 F.3d 1108
, 1113 (9th Cir. 2012) (allegation that prison guard entered cell while prisoner
was on the toilet and rubbed his thigh did not rise to the level of severe
psychological pain required to state an Eighth Amendment claim).
The district court properly dismissed Bobadilla’s Eighth Amendment
failure-to-protect claim because Bobadilla failed to allege facts sufficient to show
that defendants knew of and disregarded a substantial risk of harm to Bobadilla.
See Farmer v. Brennan,
511 U.S. 825
, 837 (1994) (“[A] prison official cannot be
found liable under the Eighth Amendment . . . unless the official knows of and
disregards an excessive risk to inmate health or safety”).
The district court properly dismissed Bobadilla’s Eighth Amendment
deliberate indifference claim because Bobadilla failed to allege facts sufficient to
2 18-15080
show that defendants were deliberately indifferent to an excessive risk to his
mental health. See Toguchi v. Chung,
391 F.3d 1051
, 1056-57 (9th Cir. 2004)
(setting forth elements of a deliberate indifference claim).
The district court did not abuse its discretion in denying Bobadilla’s motion
to appoint counsel because Bobadilla did not demonstrate exceptional
circumstances. See Agyeman v. Corr. Corp. of Am.,
390 F.3d 1101
, 1103 (9th Cir.
2004) (setting forth standard of review and requirements for appointment of
counsel). We reject as without merit Bobadilla’s contention that the district court
failed to explain its decision to deny the motion for counsel.
The district court did not abuse its discretion in denying Bobadilla leave to
amend because amendment would have been futile. See Cervantes v. Countrywide
Home Loans, Inc.,
656 F.3d 1034
, 1041 (9th Cir. 2011) (setting forth standard of
review and stating that leave to amend may be denied where amendment would be
futile); Chodos v. West Publ’g Co.,
292 F.3d 992
, 1003 (9th Cir. 2002) (explaining
that a district court’s discretion to deny leave to amend is “particularly broad”
when it has previously granted leave to amend).
Contrary to Bobadilla’s contention, the district court did not err in implicitly
denying his motion to supplement his amended complaint, because Bobadilla was
granted an extension of time to file objections to the magistrate judge’s findings
and recommendations and he instead filed this motion.
3 18-15080
We reject as unsupported by the record Bobadilla’s contention that he was
not given an opportunity to file objections to the magistrate judge’s findings and
recommendations.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright,
587 F.3d 983
, 985 n.2 (9th Cir. 2009).
AFFIRMED.
4 18-15080 |
4,598,026 | 2020-11-20 19:20:25.369713+00 | null | null | Harold F. Smith, et ux. 1 v. Commissioner.
Smith v. Commissioner
Docket Nos. 92546, 4041-62.
United States Tax Court
T.C. Memo 1963-227; 1963 Tax Ct. Memo LEXIS 118; 22 T.C.M. (CCH) 1146; T.C.M. (RIA) 63227;
August 23, 1963
R. M. Ginsberg, 1603 Kirby Bldg., Dallas, Tex., for the petitioners. James F. Hart for the respondent.
DAWSON
Memorandum Findings of Fact and Opinion
DAWSON, Judge: Respondent determined deficiencies in the income taxes of petitioners for the years and in the amounts as follows:
YearDeficiency
1958$16,204.11
19596,102.95
1960388.92
Petitioners have conceded some adjustments raised in the statutory notice of deficiency, thus leaving two issues for decision: (1) whether petitioners realized ordinary income or long-term capital gain from the sale of certain houses during the taxable years 1958, 1959, and 1960; (2) whether petitioners are entitled to use the double declining balance method of depreciation over a 25 year life*119 for houses leased during these years under contracts providing for options to purchase.
Findings of Fact
Some of the facts were stipulated by the parties. The stipulation of facts and exhibits attached thereto are incorporated herein and made a part of our findings by this reference.
During the years involved in these proceedings Harold F. and Gertrude Smith were husband and wife, whose residence was 11031 Pinochio Street, Dallas, Texas. They filed their joint Federal income tax returns for the years 1958, 1959, and 1960 with the district director of internal revenue, Dallas, Texas.
Harold F. Smith (hereinafter referred to as the petitioner) is a graduate of the Dallas public schools and attended the University of Texas. After leaving the University of Texas, he was employed by the United States Post Office Department until 1942 when he entered the Armed Foreces of the United States, serving in the United States Navy. Following his discharge from the Navy in December 1945, the petitioner returned to his employment with the United States Post Office Department for approximately 1 year. In 1947 he entered the real estate business and started building houses under the name of*120 Harold Construction Company. In the same year he obtained a real estate license from the State of Texas and operated a real estate office.
In 1949 petitioner and two other individuals formed the Prairie Development Corporation and built about 550 houses in Grand Prairie, Texas. Upon the liquidation of the Prairie Development Corporation, the petitioner received 14 duplexes and rental property in Grand Prairie, vacant land, and a lumber yard, all of which he still owns.
In 1951 the petitioner entered into a joint venture with Investors Diversified Services and built 55 houses in Arlington, Texas. These were built by him individually and Investors Diversified Services financed the operation.
After 1947, petitioner engaged in various real estate activities through the following corporations:
Texbuilt Corporation, Smith Ready-Mix Concrete Company, Sylvan Heights Corporation, Smithbilt Homes, Inc., Harold F. Smith Company, Inc., Harold F. Smith Investment Corporation.
Petitioner either owned a majority of the stock of these corporations or owned them 100 percent. All the corporations built and sold houses to customers in the ordinary course of business. The corporate return of*121 Smithbilt Homes, Inc., for the period June 1, 1958, to May 31, 1959, reported total sales of $108,138.46.
Petitioner, either individually, in joint ventures, or in connection with his corporations, has built approximately 2,500 houses for sale to customers in the ordinary course of his business. Only 55 were built by Harold F. Smith individually.
During the years in issue and prior thereto the petitioner was an active member of the National, State, and County Chapters of the National Association of Home Builders. He was also a director of the Dallas Chapter of the National Association of Home Builders for 13 years and served as its president in 1956. He has had extensive experience in the home building industry and is well informed as to the insured housing programs of the Federal Housing Administration and the Veterans Administration.
On December 31, 1951, petitioner purchased unimproved land in the City of Arlington, Texas, for $80,385. On April 9, 1952, he filed a plat for the Meadowbrook Park Addition to Arlington, which contained part of the land purchased by him on December 31, 1951. This plat was duly recorded in the Deed Records of Tarrant County, Texas. Then, on July 1, 1953, petitioner*122 filed a plat for the Meadowbrook Park Addition No. 2 which contained part of the land purchased by him on December 31, 1951. This plat was also recorded in the Deed Records of Tarrant County.
On February 7, 1952, the Fort Worth office of the Federal Housing Administration issued a Subdivision Report to petitioner pertaining to the subdivision of Meadowbrook Park Addition to the City of Arlington. This report outlined the requirements for construction of one-family dwellings and stated that the Federal Housing Administration would consider applications for loan insurance on individual properties under the subdivision program. The development of raw land in accordance with the Subdivision Report makes it easier for individual houses to be insured later by the Federal Housing Administration.
On May 8, 1956, Smith Ready-Mix Concrete Company conveyed 23 lots in the Meadowbrook Park Addition No. 2 to petitioner, which lots were included in the plat previously referred to. On May 8, 1957, Smithbilt Homes, Inc., conveyed seven lots in the Meadowbrook Park Addition to petitioner, which lots were also included in the plat previously mentioned.
During the year 1957 the petitioner built*123 30 houses of brick veneer construction on the 30 lots previously purchased from Smith Ready-Mix Concrete Company and Smithbilt Homes, Inc.
On September 4, 1958, petitioner purchased three houses in Meadowbrook Park Addition No. 2 to the City of Arlington from Smithbilt Homes, Inc., and another five houses in Meadowbrook Park Addition No. 3 from Smithbilt Homes, Inc., on November 5, 1958.
None of the 30 houses were inspected by the Federal Housing Administration during their construction.
The minimum down payment on a house not inspected by Federal Housing Administration during construction and less than 1 year old was 10 percent of its appraised value. Prior to August 5, 1957, the minimum down payment on a house not inspected by the Federal Housing Administration during construction and at least 1 year old was 5 percent of its appraised value. After August 5, 1957, the minimum down payment under Federal Housing Administration regulations was decreased from 5 percent to 3 percent.
Petitioner is a low-cost home builder and constructed the 30 houses primarily to reach people in the three and four hundred dollar per month salary bracket.
During the years 1957 and 1958 the petitioner*124 placed and paid for advertisements in the Arlington Citizen and Arlington Journal newspapers in the real estate for sale section pertaining to the houses in issue. Both of these newspapers had separate sections for advertising rental property and the customer determined whether the advertisement was placed in the rental section or the real estate for sale section.
The October 10, 1957, edition of the Arlington Journal contained the following advertisement under a section entitled Real Estate [For Sale]:
$190
MOVES YOU TODAY into this 3 BEDROOM BRICK Many Special Features Veteran or Non-Veteran No Closing Cost
Model Home - 1901 Glenhaven New York Drive across from Berry School
HAROLD F. SMITH CR5-2359
The October 17, 1957, edition of the Arlington Journal contained the following advertisement under a section entitled Real Estate [For Sale]:
$190
MOVES YOU IN TODAY THIS 3-BEDROOM BRICK
Many Special Features - Veteran or Non-Veteran
No Closing Cost - See Model Home, 1901 Glenhaven
Across Street from Berry School on New York Drive
HAROLD F. SMITH CR5-2359
The October 21, October 28, and November 4, 1957, issues of the Arlington Citizen and the October 24, *125 October 31, and November 7, 1957, issues of the Arlington Journal contained the following advertisement in the "Real Estate" section of the newspapers:
$190
MOVES YOU IN TODAY THIS 3-BEDROOM BRICK
$9400
Many Special Features - Veteran or Non-Veteran
No Closing Cost - See Model Home, 1901 Glenhaven
Across Street From Berry School on New York Drive
HAROLD F. SMITH CR5-2359
The September 8 and September 22, 1958, issues of the Arlington Citizen and the September 11 and September 18, 1958, issues of the Arlington Journal contained the following advertisement under the "Real Estate" section:
IMMEDIATE POSSESSION No Closing Costs - No Red Tape 901 NEWTON $6950
2bdrm. frame. $140 moves you in.
* * *
$200 to $230 moves you in. 2125 - 2127 - 2129 - 2131 - 2133
BROOKSHIRE
New 3 bedroom bricks. 1 1/2 baths, carpeted. $11,000 to $11,900
Our plan allows you to move in and you are given credit for 1/3 of your monthly payment toward your down payment.
HAROLD F. SMITH & CO.
1901 Glenhaven St. CR5-2359
The houses located at 2125, 2127, 2129, and 2131 Brookshire are houses involved in this proceeding.
The September 29, 1958, Arlington Citizen and the September 25, 1958, Arlington*126 Journal contained the following advertisement in the "Real Estate" section:
IMMEDIATE POSSESSION $200 to $230
MOVE YOU IN 2125 - 2127 - 2129 - 2131 - 2133
BROOKSHIRE
New 3 bedroom bricks, 1 1/2 and 2 baths, carpeted. $11,000 to $12,950 Our plan allows you to move in and you are given credit for 1/3 of your monthly payment toward your down payment.
HAROLD F. SMITH & CO.
1901 Glenhaven St. CR5-2359
The November 14, 1957, Arlington Journal contained the following advertisement in the "Real Estate" section:
FOR LEASE
With option to purchase - 3 bedroom brick homes. Located close to shopping center and schools. 1/3 of rent credited toward purchase price.
HAROLD F. SMITH
1901 Glenhaven St. CR5-2359
The November 21, 1957, Arlington Journal contained the following advertisement in the "Real Estate" section:
$190
MOVES YOU IN TODAY
$9400
THIS 3-BEDROOM BRICK
Many special features. No closing cost. Model Home - 1901 Glenhaven. Corner Glenhaven and New York Ave.
Also will trade your equity in on 3 bedroom bath and a half. F.H.A.
HAROLD F. SMITH CR 5-2359
The July 13, 1959, edition of the Arlington Citizen contained the following advertisement in the "Real*127 Est. Imp.":
F H A MINIMUM DOWN PAYMENT
3 bedrooms, 1 and 2 baths, single and double garages. 1101 Moore Terrace, 2124 Brookshire, 2129 Brookshire
J. RUSSEL [RUSSELL] SMITH "Honest John"
CR 4-5209 CR 5-6147
The house located at 2129 Brookshire is one of the houses involved in this proceeding.
J. Russell Smith is petitioner's brother and petitioner obtained a real-estate license for him. He represented petitioner and was paid commissions for leasing and selling some houses involved in this proceeding. Advertisements were placed in the newspapers by J. Russell Smith pertaining to the houses in issue which were paid for and sanctioned by petitioner.
Twenty-five of the thirty houses built by petitioner were leased with options to purchase before the close of 1957. Three houses were leased on January 20, 1958, March 7, 1958, and April 26, 1958, and the house at 1901 Glenhaven was leased to J. Russell Smith on October 1, 1958. Six of the eight houses purchased by petitioner from his corporations in 1958 were leased with options to purchase between September and November 1958.
All of the lease agreements required the payment of 2 months' rent upon signing of the lease. *128 They also required the tenants to maintain the property as if the lessee "* * * were the fee simple owner of the property."
Each lease agreement granted the lessee the option of buying the premises for a stated price, which was $9,400 for the houses built by petitioner and between $10,950 and $12,950 for the houses acquired by petitioner in 1958.
Each lease agreement contained the following provision in paragraph 2 under "Special Provision - Option to Buy":
At the time Warranty Deed is given to said LESSEE, said LESSOR shall give credit to the LESSEE for an amount of 33 1/3% of all monies paid in as rental under this lease, except that LESSOR shall give the full credit for the last month's rental paid in the event said option to purchase is exercised before the last month's rental has been accrued and payable, in which latter case credit for only 33 1/3% of said last month's rental shall be given. The credit given as above stated shall act as a down payment, and credit on the amount of purchase price above stated, and LESSEE shall pay the balance to said FORT WORTH and TARRANT COUNTY TITLE COMPANY in escrow at time warranty deed is given.
On January 1, 1958, B. J. O'Connor*129 was employed by First Continental Mortgage Company in Fort Worth, Texas. O'Connor had known petitioner since 1946 and was employed by Investors Diversified Services from 1946 to 1957. First Continental Mortgage Company handled between 20 and 25 of the loans on the houses built and sold by petitioner.
In February or March of 1958, O'Connor talked with petitioner concerning the solicitation of business for the mortgage company. O'Connor had a second conversation with petitioner at which time petitioner mentioned the houses in Arlington, that he would be selling them in the future and wanted to give the business to First Continental.
In May and July of 1958 the Fort Worth, Texas, office of the Federal Housing Administration issued three conditional commitments to First Continental Mortgage Company on the houses built by petitioner.
The amount of the credits accumulated by a lessee could be readily determined by how much had been paid in as rental payments.
Petitioner wrote letters to tenants advising them of the amount of their credits and directed them to the mortgage company. On May 16, 1958, petitioner sent a letter to Donald Goode advising him he would have $450 to his credit*130 assuming the June, July, and August payments are made. The letter enclosed a contract of sale and also stated that petitioner would arrange to have the house inspected, assist in processing the loan, and make an appointment for Goode at the loan company.
During the years in issue petitioner employed a bookkeeper to handle the rental payments, correspondence, and telephone calls. He also maintained an office and employed sales people in connection with the houses in issue.
The following schedule sets forth certain data concerning the houses constructed by petitioners in 1958 and 1959:
1958 SALES
DateDate ofHolding
FirstSecondDate ofPeriod inSalesCredits
Lease (a)Lease ()Sale (b)Months (1)Price (c)Allowed (d)
7-18-577-14-5811-12$9,400 $475
9-21-577-28-5810-119,400450
9-28-578- 1-5810-119,400450
8-27-578- 1-5811-129,500(2)
8- 5-578- 4-5811-129,400450
8-24-578- 5-5811-129,400450
10- 5-578-12-5810-119,550600()
8-20-578-18-5811-129,400450
7-10-578-19-5813-149,400500
7- ?-578-20-5812-139,500450.35()
9-21-578-22-5812-139,400450
11-16-579-11-589-109,400450
9- 1-5710- 1-579-29-5812-139,400450(3)
8-23-579-26-5813-149,500()
11-23-5710- 6-5810-119,400450
10-21-5710- 6-5811-129,500()
10-15-5710- 6-5811-129,400450
10- 1-5710-15-5811-129,400450
7- 8-5710-14-5815-169,400500
10-28-5710-22-5811-129,400450
8-24-571-20-5810-31-5814-159,500(4)
7- 9-5710-29-5711-21-5816-179,700()
1959 SALES
9-27-5711- 1-571-21-5915-16$9,500()
11-18-571-22-5914-159,500()
12-10-574-14-5916-179,400600
11-27-574-26-584-15-5916-179,400600()
10-28-574-29-5918-199,600625
10- 1-585-15-597- 89,600()
9- 2-573- 7-5811- 4-5926-279,600()
*131
Most of the houses in issue were sold under loans insured by Federal Housing Administration which qualified for the minimum down payment of 3 percent.
In the year 1958, 14 houses were sold to original lessees who exercised their options to purchase; one was leased twice and sold to the second lessee; five were leased once and sold to other persons; and two were leased twice and sold to persons who were not lessees.
Of the seven houses sold in 1959, two were sold to original lessees; two were leased twice and sold to the second lessee; two were leased once and sold to other persons; and one was leased twice and sold to another person.
Of the six houses sold by petitioner*132 in 1960, two were sold to original lessees; three were leased once and sold to other persons; and one was never leased.
No houses were leased as many as three times, and no house was leased for a second time after it became 1 year old.
Petitioner financed the purchase of the eight houses acquired from Smithbilt Corporation through loans obtained from Equitable Savings Association. The permanent financing of the houses constructed by petitioner was likewise handled by Equitable Savings Association. Notations on the deeds of trust securing the transactions show that individual properties were released from the deeds of trust and the loans were paid in full.
The petitioners realized net cash gains from the sales of the houses in issue, without depreciation, of $52,922.76 in 1958, $16,650.53 in 1959, and $2,328.24 in 1960 for a total of $71,901.53.
The petitioners realized a net cash gain or (loss) from the rental of the houses in issue, without considering depreciation, payments on principal or overhead, as follows:
1957($1,552.95)
19585,469.77
1959(106.66)
1960( 2,146.78)
The petitioners realized a net gain or (loss) from all sources other than the*133 sales of houses in issue as follows:
1958($5,777.84)
195911,851.56
19608,406.76
The houses in issue qualified for loans of 30 years which were insured by Federal Housing Administration. Under Federal Housing Administration procedures a loan insured for a term of 30 years indicates a home having an economic life of at least 40 years.
Petitioners reported the gains from the sales of 35 houses as long-term capital gains on their Federal income tax returns as follows:
1958$62,913.47
195920,711.74
19607,243.32
Respondent, however, determined that such gains represented ordinary income.
Petitioners claimed depreciation, using the double declining rate of 8 percent annually, on their Federal income tax returns with respect to unsold houses on hand at the end of each year. Respondent allowed in his statutory notices of deficiencies depreciation on these houses only on the straight-line method at the annual rate of 3 percent.
Ultimate Finding
All of the houses in issue were held by petitioners primarily for sale to customers in the ordinary course of their trade or business during the taxable years 1958, 1959, and 1960.
Opinion
*134 The primary issue, as previously stated, is whether petitioners realized ordinary income or long-term capital gains from the sale of 35 houses during the years in controversy. It is petitioners' contention that they held the houses for investment as rental properties and that they are entitled to capital gains treatment for the profits realized from the sales. The applicable statute is section 1221(1), Internal Revenue Code of 1954. 2 Respondent, on the other hand, maintains that the profits realized by the petitioners, with certain adjustments for depreciation, should be taxed as ordinary income under section 61(a) 3 since the houses were held primarily for sale to customers in the ordinary course of business. We agree with the respondent.
*135 This is entirely a factual question. The same issue has been litigated numerous times and the courts have emphasized that each case must be decided on its own facts. The parties are in agreement that the total factual pattern controls rather than any isolated or specific facts. Both parties apply the following factors considered by the Court of Appeals in Pool v. Commissioner, 251 F. 2d 233 (C.A. 9, 1957), affirming a Memorandum Opinion of this Court, certiorari denied 356 U.S. 938">356 U.S. 938 (1958):
1. The nature and extent of the taxpayer's business.
2. The nature of the acquisition of the property.
3. The activity of the seller about the property, such as the extent of improvements or his activity in promoting sales.
4. The frequency and continuity of sales over a period of time.
5. The extent and substantiality of the transaction, including a comparison of the sales income to the rental income.
Viewing the particular facts and pattern in this case against the backdrop of these guideposts developed by the courts, we think it is clear that the petitioners held the property primarily for sale to customers in the ordinary course of their trade or business.
*136 As to the nature and extent of the petitioner's business, he admittedly is a home builder. He has either individually, in joint ventures, or in connection with his various corporations, been responsible for building over 2,500 homes. He considers himself well informed on the subject of the Federal Housing Administration and Veterans Administration financing because of his extensive experience. He is active in home building associations and controls several corporations that are actively engaged in the real estate business. Even his Federal income tax returns for 1959 and 1960 disclose that his occupation is home building. Petitioner also had income from other sources including fees and rental income from shopping centers, a service station, and a drive-in food store. In connection with his activities in the rental business, there is no indication that he had ever constructed and rented homes other than the ones here involved. Thus the nature and extent of his business seems to us to be consistent with the respondent's theory of the case. Furthermore, petitioner has indicated that his primary source of income is from his rental operations; however, this is not borne out by his Federal*137 income tax returns. His net rental income when compared with income from the sales of the houses is negligible.
As to the nature of the acquisition of the property, we note that the land on which the 30 houses were constructed was acquired by petitioner in 1951. Shortly thereafter he applied for and was issued a Subdivision Report by the Federal Housing Administration, filed plats for the property, and then subdivided it. He reacquired the property from one of his corporations in 1956 and constructed in 1957 houses in his individual capacity. The other eight houses were acquired from his wholly-owned corporation that had previously built them for sale in the ordinary course of its business. All the houses were leased as soon as possible and were sold shortly after they had been leased 1 year. The nature of the acquisition of this property appears to us to fit into the overall pattern of the case. Petitioner either built or acquired the houses for sale and, we think, never intended to hold them for investment.
The third factor is the activity of the seller with respect to the property. Petitioner, of course, spent a considerable amount of time in connection with the property when*138 the houses were being constructed. Although he attempted to stress in his testimony that he did not spend much time maintaining the property, the record shows that he hired employees, that his brother represented him in leasing some of the houses, and a secretary handled the books and correspondence. He had direct contact with the lessees on several occasions and assisted in leasing and selling the houses. He also maintained an office at 1901 Glenhaven, which was called the "model home," and he placed advertisements in the Arlington newspapers, discussed financing of the property with the mortgage company, and assisted purchasers in closing their loans and directed them to the mortgage company. In our judgment this constituted a substantial amount of activity.
The fourth factor is the frequency and continuity of sales over a period of time. The record shows that the petitioner leased the houses immediately after they were either built or acquired from his corporation. Of the 35 houses involved, 29 were sold approximately 18 months after they were first leased, and all the houses were sold within 2 years after they were first leased. There were some vacancies, however, and on occasions*139 the petitioner was able to obtain a second lessee. On each of these occasions the second lease was executed before the end of the first year. No houses were leased for a second time after 1 year, and none of the houses were leased three times. In the fall of 1958 petitioner was selling houses that had been leased in 1957 at the same time he was acquiring additional houses from Smithbilt Homes, Inc. These facts strongly support the respondent's contention that the petitioner systematically built or acquired the houses, leased them, and then sold them as quickly as his plan of operation would permit.
The fifth factor is the extent and substantiality of the transactions. This is best portrayed in the instant case by the following schedule, which is a comparison of net rental income received by the petitioners from the houses in issue as compared to the gains realized by them from the sales of these houses:
Cash Gain from Sales of Houses in Issue
195819591960Total
Sales price, net$199,824.65$64,775.00$61,894.52$326,494.17
Cost and expenses146,901.8948,124.4759,566.28254,592.64
Cash gain without depreciation$ 52,922.76$16,650.53$ 2,328.24$ 71,901.53
*140 Net Rental Income from Houses in Issue
1957195819591960Total
Rentals per return$11,356.25$25,596.50$ 9,895.75$2,405.29$49,253.79
Cash expenses12,909.2020,126.7310,002.414,552.0747,590.41
Cash gain or (loss) before
depreciation($ 1,552.95)$ 5,469.77($ 106.66)($2,146.78)$ 1,663.38
To summarize the above figures, the petitioners realized a total cash gain, not including depreciation, of $71,901.53 from the sale of the 35 houses in 1958, 1959, and 1960. The net rental income received by them from their houses over a 4-year period amounted to $1,663.38. The net rental figure does not include any allowance for depreciation, nor does it take into consideration payments on the principal of the notes issued to finance the construction of the houses. This figure also does not include overhead expenses of the petitioners attributable to this rental operation, such as salaries, advertisements, and other expenses listed on their returns. Petitioner did not make an allocation of overhead expenses to his various operations. Thus, it is very likely that the petitioner sustained an overall net loss from the rental of the houses*141 in issue. We observe that the net rental figure was computed from the renting of 38 houses, whereas the net sales income was computed on the 35 houses actually sold during the years in issue. Even using the $1,663.38 figure, the gains from the sales of the houses account for over 97 percent of the total income received by petitioners from this property. This is a significant factor. We doubt whether petitioners intended for the rental operation to be profitable. It seems to us that it was simply a necessary part of his overall method of selling the houses since the leasing operation was part of the sales device.
Furthermore, the petitioners' gain from the sales of the houses is important when compared to their other income, as shown in the following schedule:
195819591960Total
Net rental income or (loss) per returns
other than houses in issue$11,401.34$14,092.78($ 623.12)$24,871.00
All other net business income or (loss)
per returns(20,486.92)(589.59)11,842.66(9,233.85)
Net profits or (loss) other than houses
in issue(9,085.58)13,503.1911,219.5415,637.15
Net gain or (loss) on rental of houses in
issue after depreciation allowed3,307.74(1,651.63)(2,812.78)(1,156.67)
Net profit (loss) from all sources except
sales of houses in issue(5,777.84)11,851.568,406.7614,480.48
Gain on sale of houses in issue per stat-
utory notices56,178.8318,812.564,201.3879,192.77
Percent of gain from sales of houses in
issue to all other income111.46%61.35%33.32%84.54%
*142 Hence the petitioners' main source of income during these years was derived from the sales of the houses in question.
The whole plan of operation followed a consistent pattern. The houses were built to be attractive to low-income groups. They were advertised in such a way to appeal to home buyers who desired to purchase a house but could not afford the large down payment that would have been required before the houses were a year old. The provisions of the leases concerning the options to purchase and the credits accumulated from rental payments appear to have been geared to meet the minimum Federal Housing Administration down payment requirements that came into effect when the houses were a year old.
Still another factor which tends to establish the existence of a trade or business as opposed to a mere liquidation and that sales were made in the ordinary course of petitioners' trade or business is a making of further or additional acquisitions of like properties during the period in which sales of such properties were being made. See Monday v. Commissioner, 252 F. 2d 789 (C.A. 6, 1958), affirming a Memorandum Opinion of this Court. The record here shows that during*143 the months of September, October, and November 1958, the petitioner acquired eight houses from his wholly owned corporation. During these same 3 months of 1958, he sold 11 of the houses that were leased in 1957. Petitioner suggests that he was forced to purchase the eight houses from his corporation because it was having trouble selling houses and needed the money to pay loans that were coming due on which petitioner was personally liable. But petitioner financed his purchase of the houses from the corporation through loans from Equitable Savings Association. Thus, he merely refinanced the loans against the houses and remained personally liable for the same amount.
Certainly the advertisements placed in the Arlington Citizen and the Arlington Journal newspapers are inconsistent with the petitioners' theory that they were only holding the property for rental purposes. The advertisements contained the following statements: " $190 Moves You Today," "Many Special Features," "Veterans and Non-Veterans," and "No Closing Costs." Six of the advertisements included the purchase price of $9,400 and one contained the following statement: "Also will trade your equity in on three bedroom, bath*144 and half - FHA." Certainly closing costs and reference to veterans and non-veterans as well as the amount of the purchase price and the other statements are not associated with rental property and imply that the houses were being offered for sale. The import of these advertisements is that petitioner has houses for sale under an arrangement whereby they can be purchased with no initial cash outlay other than the first and last months' rental of $190.
Moreover, the houses constructed by the petitioner were all leased under identical agreements entitled "Lease with Option to Purchase." The leases were for a term of 5 years and the lessee was required to pay the first and the last months' rent, which equaled $190, upon signing the lease. The monthly rental of $95 was payable in advance on the first day of each month. Each lessee was required to maintain the property as if he were the fee simple owner. The bottom portion of the leases, entitled "Special Provision - Option to Buy," granted the lessee an option to purchase the property for $9,400 and contained the provision quoted in our Findings of Fact.
The minimum down payment for houses insured by Federal Housing Administration that*145 were not inspected during construction and less than 1 year old is 10 percent of the purchase price. The minimum down payment of these houses would have been $940 until they were a year old. Prior to August 5, 1957, the minimum down payment for a house after it was 1 year old, whether inspected or not, was 5 percent and this figure was reduced to 3 percent on August 5, 1957. By the time the lessee had made 12 monthly payments, he would have accumulated total credits of $475, which is determined under the lease by taking one-third of the 12 rental payments, or $380, and adding this figure to the last month's rent of $95 that was paid when the lease was executed. Consequently, at the end of the year, the lessees would have accumulated sufficient credits to meet the minimum down payment, whether $470 for the 5 percent figure that was effective when the houses were first built or the lower figure of $282 for 3 percent financing that became effective before any of the houses were sold.
It was very convenient for petitioners to hold the houses at least 1 year for these reasons: (1) After a year the houses qualified for the first time for minimum Federal Housing Administration financing; *146 (2) the lessees would have accumulated sufficient credits by that time to meet the minimum Federal Housing Administration down payment and purchase the house; and (3) the petitioners' holding period for each house would have been more than 6 months for Federal income tax purposes.
This plan was also attractive to the lessee. Petitioner testified that the houses were designed to appeal to families in the lower income groups, that is, people earning from three to four hundred dollars a month. It would have been difficult for these people to afford the down payment of $940 that would have been required if the houses had sold before they were 1 year old. Under the special features of the petitioners' plan, they could move in immediately by only paying $190 and could purchase the house at the end of a year without having to pay any additional money since their credits by that time would be sufficient to handle the sale. The plan thus provided a convenient method for people with limited resources to purchase a house.
After the houses were leased, the petitioner was active in regard to future sales. In the early part of 1958 he advised B. J. O'Connor of First Continental Mortgage Company*147 that he would be selling the houses and wanted to give the business to him. The petitioner and O'Connor had been friends for a number of years. In May 1958 the Fort Worthoffice of Federal Housing Administration issued conditional commitments to the First Continental Mortgage Company, on two of the houses in Meadowbrook Park. O'Connor inspected the houses as early as May 1958 and the loans on over half of the houses. All the other loans were handled by Murray Investment Company.
The petitioner employed a bookkeeper who kept separate records on the houses. She testified that at any given time it could readily be determined from the books how much credit had been accumulated by the lessees. She also handled correspondence for the petitioner. On May 16, 1958, a letter was sent to one of the lessees, Donald Goode, whose lease was executed on September 28, 1957. In this letter petitioner advised Mr. Goode that he would have a credit of $450 when the June, July, and August payments were made, i.e., after Goode had been leasing about 1 year. The letter implied that petitioner would arrange to have the house inspected and process the loan. Petitioner also sent Goode a contract of sale and*148 offered to make an appointment for him at the loan company. In this connection petitioner testified that he directed the lessees to the loan company. Similar letters were sent to the other lessees. This shows that the petitioner actively assisted the purchasers in processing their loans.
Petitioner's plan of operation with respect to the eight houses acquired from his corporation was the same as those he built in 1957. They were all leased with option agreements identical to the other leases and contained the same provisions concerning a credit of one-third of rental payments against the purchase price. These houses were also advertised in the "Real Estate" sections of the Arlington Journal and the Arlington Citizen. These advertisements described four of the six houses acquired from Smithbilt by addresses and contained the following statements: "Immediate Possession," "No Closing Costs - No Red Tape," "Our Plan Allows You to Move in and You Are Given Credit for One-Third of Your Monthly Payment Toward Your Down Payment." [Italics supplied.] They also contained the prices of these houses. Again the main thrust of these advertisements was to lure home buyers who could not afford*149 to make the down payment and who were willing to rent the premises at least a year in order to accumulate sufficient credits to purchase the house.
The closing papers show that as the houses were sold the sales proceeds were applied against the outstanding loans at Equitable Savings and Loan Association. Petitioner had financed the construction of the houses by interim financing handled by Mercantile National Bank in Dallas, Texas, and the permanent financing was carried by Equitable Savings and Loan Association. The papers introduced into evidence pertaining to these loans contain notations indicating that the individual property was released from the deeds of trust held by Equitable as the houses were sold.
Petitioners rely heavily on the case of Kandolph D. Rouse, 39 T.C. 70">39 T.C. 70 (1962), and Smith v. Commissioner, 232 F. 2d 142 (C.A. 5, 1956), reversing a Memorandum Opinion of this Court. In fact, they assert that these two cases are "wholly determinative of the principal issue presented here." We disagree. In our opinion both cases are clearly distinguishable.
In Rouse, the taxpayer was not engaged in the business of selling real estate, whereas the petitioner*150 here had an extensive background in building and selling of houses in the ordinary course of business. All of the houses in the Rouse case were built by controlled corporations specifically to be purchased by the taxpayer for rental purposes, whereas in the instant case 30 of the houses were built by petitioners in their individual capacity and eight were purchased from a corporation that had built them for sale in the ordinary course of business. In Rouse, we pointed out as a fact that the leases did not contain options to purchase. But in this case all of the leases contained an option to purchase and further provided that a third of each month's rent would be credited against the purchase price when the option was exercised. In the Rouse case market conditions changed after all the houses had been acquired and no additional houses were purchased after that time. By contrast there is no evidence here of adverse market conditions and the petitioners were acquiring and leasing new houses at the same time they were selling other houses. In Rouse, there was no advertising in newspapers and "for rent" signs were placed on the houses. In this case the petitioners never advertised the houses*151 "for rent" but placed advertisements under the "real estate" section of the newspapers.
The Smith case, supra, is one of many which involved the leasing and subsequent sale of houses under controls that were in effect during World War II. Its factual pattern is peculiar to the wartime conditions and is inapplicable to the instant case. Furthermore, the Court of Appeals found in Smith that "on objective tests, economic realization depended on rentals." Here the economic realization depended on the sale of the houses.
Petitioners advance some arguments which require comment. They state that because of depressed market conditions they decided to enter the rental housing business. We find insufficient evidence in the record to support this contention. Then, they state that they had long been in the residential rental business. This is likewise unsupported by the record.
It is also stressed that there was a serious danger the houses would become vacant if the petitioners had not consented to the exercise of the options and that this would have resulted in financial disaster. The obvious answer to this is that there is no requirement in the leases that the petitioners consent to the*152 exercise of the option. In fact, such a provision would be repugnant to the option concept. The lessees were granted an option to purchase the houses at designated prices during the periods of the leases.
Both parties have cited a number of other cases and have made other arguments, all of which we have examined and considered. However, we find that they are not sufficiently close or persuasive to warrant discussion.
Looking as we do at the totality of the evidence presented - the petitioner's extensive activities in the real estate business, the purposes for which he acquired and developed the properties, the promotional methods used to sell the houses, the frequency and pattern of sales, and the substantial gains realized from the sales as compared to the small rental income - we reach the ultimate conclusion that the houses were held primarily for sale to customers in the ordinary course of petitioners' trade or business. Cf. Tomlinson v. Dwelle, Jr., 318 F. 2d 60 (C.A. 5, 1963). Therefore, we hold for the respondent on this issue.
We turn finally to the subsidiary question as to whether the petitioners are entitled to accelerated depreciation at an 8 percent*153 rate for certain houses on hand at the close of the taxable years involved.
Although we have decided that all of the houses in issue were held primarily for sale to customers in the ordinary course of petitioners' business, thereby precluding any allowance for depreciation, the respondent has nevertheless allowed depreciation, based on a 3 percent straight-line method, with respect to 16 houses on hand at the end of 1958, three houses on hand at the end of 1959, and three houses on hand at the end of 1960. Consequently, we do not disturb this allowance.
Decisions in both dockets will be entered under Rule 50.
Footnotes |
4,654,750 | 2021-01-26 21:00:48.079065+00 | null | https://cdn.ca9.uscourts.gov/datastore/memoranda/2021/01/26/19-17400.pdf | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED CLARK, No. 19-17400
Plaintiff-Appellant, D.C. No. 2:18-cv-02241-APG-
BNW
v.
NEW CENTURY MORTGAGE MEMORANDUM*
COMPANY; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted January 20, 2021**
Before: McKEOWN, CALLAHAN, and BRESS, Circuit Judges.
Alfred Clark appeals pro se from the district court’s judgment dismissing his
action alleging violations of the Fair Debt Collection Practices Act (“FDCPA”) and
state law claims. We have jurisdiction under
28 U.S.C. § 1291
. We review de
novo a district court’s dismissal based on res judicata. Stewart v. U.S. Bancorp,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
297 F.3d 953
, 956 (9th Cir. 2002). We may affirm on any basis supported by the
record, Thompson v. Paul,
547 F.3d 1055
, 1058-59 (9th Cir. 2008), and we affirm.
The district court properly dismissed Clark’s FDCPA claim based on res
judicata because Clark’s claim arises out of the same nucleus of operative fact as
his FDCPA claims in his prior federal action against appellees that resulted in a
final judgment on the merits. See Taylor v. Sturgell,
553 U.S. 880
, 891 (2008)
(“The preclusive effect of a federal-court judgment is determined by federal
common law.”); Mpoyo v. Litton Electro-Optical Sys.,
430 F.3d 985
, 987-88 (9th
Cir. 2005) (setting forth elements of res judicata, and explaining this court’s
transaction test used to determine whether two suits share a common nucleus of
operative fact).
Although Clark’s state law claims may not have been barred by res judicata,
dismissal of those claims was proper because Clark failed to allege facts sufficient
to state any plausible claims. See Breliant v. Preferred Equities Corp.,
918 P.2d 314
, 318 (1996) (per curiam) (“In a quiet title action, the burden of proof rests with
the plaintiff to prove good title in himself.”), abrogated on other grounds by
Delgado v. Am. Family Ins. Grp.,
217 P.3d 563
(2009); Bulbman, Inc. v. Nev. Bell,
825 P.2d 588
, 592 (1992) (setting forth elements of fraudulent misrepresentation
claim under Nevada law).
2 19-17400
We do not consider allegations not properly raised before the district court,
or matters not specifically and distinctly raised and argued in the opening brief.
See Padgett v. Wright,
587 F.3d 983
, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 19-17400 |
4,669,329 | 2021-03-18 23:02:11.527539+00 | null | https://www.courts.ca.gov/opinions/nonpub/E073597.PDF | Filed 3/18/21 P. v. Estrada CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073597
v. (Super.Ct.No. INF1600456)
ENRIQUE SOLORZANO ESTRADA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed as modified.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael
Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
A jury found defendant and appellant Enrique Estrada guilty of attempting to
commit a lewd and lascivious act on a child under the age of 14 (Pen. Code,1 §§ 664,
288, subd. (a), count 1) and misdemeanor annoying or molesting a child under the age of
18 (§ 647.6, subd. (a), count 2). A trial court sentenced him to four years in state prison
on count 1 and one year on count 2, to be served concurrently, with credit for time
served. Since his credits exceeded his sentence, he was released from custody.
On appeal, defendant contends the court should have stayed the sentence on count
2, pursuant to section 654. The People concede, and we agree.
FACTUAL BACKGROUND
The victim’s mother took the victim and his siblings to the public library one day.
The victim was 12 years old at the time. He went to use the restroom. He stood in front
of one of the urinals and started to urinate. Defendant walked up to the urinal right next
to him. Defendant unbuckled his pants and started talking to the victim, with his genitals
exposed. The victim felt uncomfortable and ignored him. Defendant leaned toward the
victim and was a few inches away when he started licking his lips and breathing heavily
on the victim. The victim continued to try and ignore him but noticed that defendant was
looking at his (the victim’s) genitals. Defendant looked down and up, from the victim’s
genitals to his face, and said, “Can I suck it?” The victim became scared, quickly
buckled his pants, and ran out of the restroom.
1 All further statutory references will be to the Penal Code unless otherwise noted.
2
DISCUSSION
The Court Should Have Stayed the Sentence on Count 2
Defendant argues that the attempted lewd act upon a child in count 1 and the
annoying or molesting a child in count 2 constituted one indivisible transaction
committed with the same criminal intent and objective—to commit a touching of a child
and satisfy his own sexual desires. Thus, the court should have stayed the sentence on
count 2 under section 654. The People concede, and we agree.
A. Section 654
Section 654, subdivision (a), provides in pertinent part: “An act or omission that
is punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision. . . .” “Section 654
precludes multiple punishments for a single act or indivisible course of conduct.
[Citation.]” (People v. Hester (2000)
22 Cal.4th 290
, 294.) “The purpose of section 654
is to prevent multiple punishment for a single act or omission [or indivisible course of
conduct], even though that act or omission [or indivisible course of conduct] violates
more than one statute and thus constitutes more than one crime. . . .” (People v. Liu
(1996)
46 Cal.App.4th 1119
, 1135 (Liu); see People v. Harrison (1989)
48 Cal.3d 321
,
335.) “The divisibility of a course of conduct depends upon the intent and objective of
the defendant. If all the offenses are incidental to one objective, the defendant may be
punished for any one of them, but not for more than one.” (Liu, at p. 1135.)
3
B. The Court Should Have Applied Section 654 to Count 2
The evidence showed that defendant exposed himself to the victim, leaned up
close to him, stared at his genitals, licked his (defendant’s) lips and breathed heavily, and
asked the victim if he could orally copulate him. The evidence supports a finding that the
attempted lewd act and annoying or molesting a child were based upon the same conduct.
We note that the prosecutor argued counts 1 and 2 were based on the same course of
conduct and, at sentencing, submitted on the probation report, which recommended that
the sentence on count 2 be stayed under section 654.
We conclude that the convictions for attempted lewd act upon a child and
annoying or molesting a child were based upon the identical conduct. Thus, the sentence
on count 2 should have been stayed under section 654.
DISPOSITION
The judgment is modified to stay the term imposed on count 2 pursuant to section
654. In all other respects, the judgment is affirmed. The trial court is directed to amend
its minutes to reflect the section 654 stay on count 2.2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J.
We concur:
McKINSTER
Acting P. J.
SLOUGH
J.
2 We note that there is no need to amend the abstract of judgment. Since count 2
was a misdemeanor, the court apparently sentenced him to county jail. Thus, count 2 is
not reflected on the abstract of judgment.
4 |
4,669,330 | 2021-03-18 23:02:11.972775+00 | null | https://www.courts.ca.gov/opinions/nonpub/F077568.PDF | Filed 3/18/21 P. v. Escamilla CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077568
Plaintiff and Respondent,
(Super. Ct. No. BF168296A)
v.
JULIAN JACOB ESCAMILLA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John D.
Oglesby, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
SEE CONCURRING OPINION
INTRODUCTION
Defendant Julian Jacob Escamilla sexually assaulted a 12-year-old girl he
encountered at a park. He was charged with and convicted by jury of committing a lewd
or lascivious act upon a child under 14 years of age (Pen. Code, § 288, subd. (a);
count 1),1 oral copulation of a child under 14 years of age (former § 288a,
subd. (c)(2)(B); count 2), and sexual penetration of a child under 14 years of age by
means of force, violence, duress, menace, or fear (§ 289, subd. (a)(1)(B); count 3).2 The
jury found the special allegations of simple kidnapping and aggravated kidnapping,
attached to all three counts, true. (§ 667.61, subds. (d)(2), (e)(1).)3
Under section 667.61, known as the “One Strike” law, the trial court sentenced
defendant to a mandatory term of life without the possibility of parole (LWOP) on
count 2 and a concurrent mandatory LWOP term on count 3. (Id., subd. (j)(1).) On
count 1, the court imposed a mandatory term of 25 years to life in prison, stayed under
section 654. (§ 667.61, subd. (j)(2).)
Defendant was 21 years old when he committed the crimes in this case. On
appeal, he claims that section 3051, subdivision (h), which categorically excludes persons
sentenced under the One Strike law from youth offender parole hearing eligibility,
violates the equal protection clauses of the federal and state Constitutions. He also
1 All further statutory references are to the Penal Code unless otherwise specified.
2 Section 288 was amended, effective January 1, 2019, but the changes are not relevant to
the conviction in this case. (Stats. 2018, ch. 70, § 2, pp. 2–4) Additionally, also effective
January 1, 2019, section 288a was renumbered to section 287 and section 667.61, discussed post,
was amended to reflect this renumbering. (Stats. 2018, ch. 423, § 49, pp. 88–91, § 68, pp. 127–
130.) Relevant to count 2, former section 288a, subdivision (c)(2)(B), is now section 287,
subdivision (c)(2)(B).
3 Subdivision (e)(1) of section 667.61, simple kidnapping, applies where “the defendant
kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5,” and
subdivision (d)(2) of section 667.61, aggravated kidnapping, applies where “[t]he defendant
kidnapped the victim … and the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent in the underlying offense .…”
2.
claims that he is entitled to reversal of the simple kidnapping finding under
section 667.61, subdivision (e)(1), because it is lesser and included within the greater
finding of aggravated kidnapping under section 667.61, subdivision (d)(2); and that given
his LWOP sentence, the trial court improperly imposed a parole revocation restitution
fine under section 1202.45, subdivision (a).
The People concede the parole revocation restitution fine must be vacated, but
they otherwise dispute defendant’s entitlement to any relief.
We agree with the parties that the trial court erred in imposing a parole revocation
restitution fine under section 1202.45, subdivision (a), but we reject defendant’s
argument requesting relief from the jury’s simple kidnapping finding. We also reject his
equal protection challenge to the exclusion of young adult One Strike offenders from
youth offender parole hearing eligibility under section 3051, subdivision (h). We
acknowledge the harsh consequences of the One Strike law, the trend regarding treatment
of juveniles and young adult offenders under the law, and the difficulties presented by
this question. However, “[t]o mount a successful rational basis challenge, a party must
‘“negative every conceivable basis”’ that might support the disputed statutory disparity”
(Johnson v. Department of Justice (2015)
60 Cal.4th 871
, 881 (Johnson)), and given this
deferential standard of review, we are unable to conclude that there is no rational basis
underlying the exclusion of young adult One Strike offenders from youth offender parole
hearings under section 3051, subdivision (h). As explained below, reconciliation of the
existing tensions in the law falls within the purview of the legislative branch. Therefore,
we vacate the parole revocation restitution fine, but otherwise affirm the judgment.
FACTUAL SUMMARY
One night in May 2017 around 9:00 or 9:30 p.m., Ashley C., 12 years old, snuck
out of her house and went to a park with her 13-year-old friend. After the two girls
argued, Ashley’s friend went home and Ashley sat down along the railroad tracks by the
park. A stranger, later identified as defendant, approached and sat down next to Ashley.
3.
He began asking her questions. They talked for a bit, and Ashley told him her name and
that she was 12 years old. Defendant said he was 17 years old, asked her why she was
alone and commented that no one should be alone in the world.
Defendant scooted closer to Ashley and she moved away. He then put his arm
around her neck. She moved away, said she had to leave and stood up. Defendant
grabbed her wrist, scaring her. She felt she could not get away from him and sat back
down. They talked further and he leaned in to kiss her, at one point putting his tongue in
her mouth. Defendant’s breath smelled of alcohol and Ashley told police he was drunk.
She pushed him, stood up and moved a few feet away, but he grabbed her with both
hands. She was scared and could not get away. When she told him to let her go because
she wanted to leave, he raised his hand as if he was going to strike her and she was
frightened he was going to hurt her.
Ashley told him again to let her go, but he began pulling her toward what she
described as “a little fort-looking thing.” A detective explained the area, which was
approximately 80 feet from the tracks where defendant and Ashley had been sitting, was
a hollow in the brush created by tree branches that grew up from a stump and bent back
to the ground, creating a secluded dome-like space. There was a blanket on the ground
inside the hollow, another blanket hanging on the brush, a shopping cart, and trash in the
area.
Ashley pulled back in resistance, but defendant was stronger. He pulled her into
the brush hollow, pushed her down on the blanket and got on top of her. She struggled
and yelled for help when she saw a bicyclist riding by. The bicyclist stopped and
defendant covered Ashley’s mouth with his hand. She bit defendant’s hand and he
removed it but, when she looked again, the bicyclist was gone.
Defendant unbuckled Ashley’s pants and pulled them down, along with the shorts
and underwear she was wearing underneath. After asking Ashley if she had a condom,
defendant inserted his finger in her vagina and moved it around. She felt burning pain
4.
and told him to stop. Defendant then licked her vagina. At some point, defendant
stopped, got off of her and said, “‘Do me.’” As defendant was lying on the ground on his
back, Ashley pulled her pants up and ran, leaving behind her wallet and cell phone, which
had fallen from her pockets to the ground.
Defendant followed Ashley out of the hollow, but headed in the opposite direction.
Ashley ran up to a man in the park and asked him to call 911. He just stared at her in
response, so she ran to her friend’s nearby house for help. Someone at the house called
911 and Ashley was taken to the hospital by ambulance, still extremely upset and
sobbing.
Ashley underwent a Sexual Abuse Response Team (SART) examination, which
included swabs for DNA and a blood draw. The examining nurse observed a laceration
to Ashley’s vagina caused by blunt force trauma, as well as soil and vegetation debris on
her buttocks. Defendant was located at his home near the park at approximately
4:00 a.m. and he also underwent a SART examination.4 A swab for DNA taken from
Ashley’s vagina was consistent with defendant’s profile, and a swab for DNA taken from
defendant’s hand was consistent with Ashley’s profile.
DISCUSSION
I. Equal Protection Challenge to Exclusion from Eligibility for Youth Offender
Parole Hearing
A. Background
Prior to committing the offenses in this case, defendant’s criminal record was
limited to two misdemeanor convictions from 2016: driving under the influence of
alcohol and public intoxication. (Veh. Code, § 23152, subd. (a); Pen. Code, § 647,
subd. (f).) Based on defendant’s commission of specified sex crimes against a victim
under the age of 14 years and the jury’s special circumstance findings of simple
4 A detective who contacted defendant testified that he did not see any signs defendant was
under the influence of drugs or alcohol.
5.
kidnapping and aggravated kidnapping, however, he was sentenced under the One Strike
law to mandatory terms of 25 years to life on count 1 and LWOP on counts 2 and 3.
(§ 667.61, subd. (j)(1), (2).)
Relevant to defendant’s claim on appeal, section 3051 was added to the Penal
Code effective January 1, 2014. As originally enacted, the statute provided for youth
offender parole hearings for those who committed their controlling offenses before
18 years of age. (Stats. 2013, ch. 312, § 4, pp. 5–7.) In enacting section 3051 and related
changes to the Penal Code, the Legislature found and declared:
“[A]s stated by the United States Supreme Court in Miller v. Alabama
(2012) [
567 U.S. 460
], ‘only a relatively small proportion of adolescents’
who engage in illegal activity ‘develop entrenched patterns of problem
behavior,’ and that ‘developments in psychology and brain science continue
to show fundamental differences between juvenile and adult minds,’
including ‘parts of the brain involved in behavior control.’ The Legislature
recognizes that youthfulness both lessens a juvenile’s moral culpability and
enhances the prospect that, as a youth matures into an adult and
neurological development occurs, these individuals can become
contributing members of society. The purpose of this act is to establish a
parole eligibility mechanism that provides a person serving a sentence for
crimes that he or she committed as a juvenile the opportunity to obtain
release when he or she has shown that he or she has been rehabilitated and
gained maturity, in accordance with the decision of the California Supreme
Court in People v. Caballero (2012)
55 Cal.4th 262
and the decisions of the
United States Supreme Court in Graham v. Florida (2010)
560 U.S. 48
, and
Miller v. Alabama .…. Nothing in this act is intended to undermine the
California Supreme Court’s holdings in In re Shaputis (2011)
53 Cal.4th 192
, In re Lawrence (2008)
44 Cal.4th 1181
, and subsequent cases. It is the
intent of the Legislature to create a process by which growth and maturity
of youthful offenders can be assessed and a meaningful opportunity for
release established.” (Stats. 2013, ch. 312, § 1, pp. 2–3, italics added.)
Under the statute, offenders sentenced under the “Three Strikes” law (§§ 667,
subds. (b)–(i), 1170.12, subds. (a)–(d)) or the One Strike law, or to LWOP, and those
“who, subsequent to attaining 18 years of age, commit[] an additional crime for which
malice aforethought is a necessary element of the crime or for which the individual is
6.
sentenced to life in prison” were categorically excluded from youth offender parole
hearing eligibility. (Stats. 2013, § 4, p. 5.) Section 3051 was subsequently extended to
those who committed their controlling offenses when they were under 23 years of age
(Stats. 2015, ch. 471, § 1, pp. 1–3), and later to those who committed their controlling
offenses when they were 25 years of age or younger (Stats. 2017, ch. 675, § 1, pp. 1–3).
The categorial exclusions in subdivision (h) remained, but as to juveniles, section 3051
was amended effective January 1, 2018, to add subdivision (b)(4), which provided, “A
person who was convicted of a controlling offense that was committed before the person
had attained 18 years of age and for which the sentence is life without the possibility of
parole shall be eligible for release on parole by the board during his or her 25th year of
incarceration at a youth offender parole hearing, unless previously released or entitled to
an earlier parole consideration hearing pursuant to other statutory provisions.” (Stats.
2017, ch. 684, § 1, p. 2.)5
Defendant advances a facial challenge to subdivision (h) of section 3051 under the
equal protection clauses of the state and federal Constitutions. (U.S. Const., 14th
Amend.; Cal. Const., art. I, § 7, subd. (a).)6 He claims that young adult offenders such as
himself sentenced under the One Strike law are similarly situated to first degree
murderers who are statutorily eligible for youth offender parole hearings and that there is
no rational basis underlying the disparity in treatment. Defendant urges us to follow
5 Section 3051, subdivision (b)(4), presently provides: “A person who was convicted of a
controlling offense that was committed before the person had attained 18 years of age and for
which the sentence is life without the possibility of parole shall be eligible for release on parole
at a youth offender parole hearing during the person’s 25th year of incarceration. The youth
parole eligible date for a person eligible for a youth offender parole hearing under this paragraph
shall be the first day of the person’s 25th year of incarceration.” (See Stats. 2019, ch. 577, § 2,
p. 3.)
6 In the absence of a contrary argument, “we address [the defendant’s] state and federal
claims together.” (In re C.B. (2018)
6 Cal.5th 118
, 133, fn. 11, citing Johnson, supra, 60 Cal.4th
at p. 881; accord, People v. Chatman (2018)
4 Cal.5th 277
, 287–288 (Chatman).)
7.
People v. Edwards (2019)
34 Cal.App.5th 183
, 199 (Edwards) and find that the
categorical exclusion of One Strike youth offenders from youth offender parole hearing
eligibility violates equal protection.
The People argue that the two groups are not similarly situated and there are
rational bases for excluding One Strike offenders from eligibility for youth offender
parole hearings under section 3051. For the reasons set forth below, we conclude that
defendant has not met his burden on appeal. As to young adult offenders such as
defendant, even if we assume that eligible first degree murderers and One Strike
offenders are similarly situated for the purpose of youth offender parole hearings,
legislative concern over recidivism in sex offenders provides a rational basis for
distinguishing the two groups of offenders, which forecloses defendant’s equal protection
claim. (Johnson, supra, 60 Cal.4th at p. 881.)
B. Legal Standard
“At core, the requirement of equal protection ensures that the government does not
treat a group of people unequally without some justification.” (Chatman, supra, 4
Cal.5th at p. 288.) “Where … a disputed statutory disparity implicates no suspect class or
fundamental right, ‘equal protection of the law is denied only where there is no “rational
relationship between the disparity of treatment and some legitimate governmental
purpose.”’ [Citations.] ‘This standard of rationality does not depend upon whether
lawmakers ever actually articulated the purpose they sought to achieve. Nor must the
underlying rationale be empirically substantiated. [Citation.] While the realities of the
subject matter cannot be completely ignored [citation], a court may engage in “‘rational
speculation’” as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review “whether or not” any such speculation has “a foundation in the
record.”’ [Citation.] To mount a successful rational basis challenge, a party must
‘“negative every conceivable basis”’ that might support the disputed statutory disparity.
[Citations.] If a plausible basis exists for the disparity, courts may not second-guess its
8.
‘“wisdom, fairness, or logic.”’” (Johnson, supra, 60 Cal.4th at p. 881; accord, Chatman,
at pp. 288–289.)
“‘[W]hen conducting rational basis review, we must accept any gross
generalizations and rough accommodations that the Legislature seems to have made.’
[Citation.] ‘A classification is not arbitrary or irrational simply because there is an
“imperfect fit between means and ends”’ [citations], or ‘because it may be “to some
extent both underinclusive and overinclusive”’ [citations].” (Johnson, supra, 60 Cal.4th
at p. 887.) “At bottom, the Legislature is afforded considerable latitude in defining and
setting the consequences of criminal offenses.” (Ibid.; accord, Chatman, supra, 4 Cal.5th
at pp. 288–289.)
C. Analysis
1. Summary of Appellate Court Decisions
a. One Strike Offenders
The issue before us was considered by the Courts of Appeal in Edwards, supra,
34 Cal.App.5th 183
, and, postbriefing, People v. Williams (2020)
47 Cal.App.5th 475
,
review granted July 22, 2020, S262229 (Williams) and People v. Moseley (2021)
59 Cal.App.5th 1160
(Moseley).7 In Edwards, the defendants were 19 years old when they
committed their controlling offenses and, as here, they were excluded from relief under
section 3051, subdivision (h), because they were sentenced under the One Strike law.
7 We note that in People v. Bell (2016)
3 Cal.App.5th 865
, review granted January 11,
2017, S238339, the Court of Appeal considered an equal protection challenge to the exclusion of
One Strike offenders from section 3051, and Bell is addressed in Edwards, Williams and
Moseley. However, after issuing its decision in People v. Contreras (2018)
4 Cal.5th 349
(Contreras), the California Supreme Court transferred Bell back to the appellate court on
June 13, 2018, with directions to vacate the opinion and reconsider the matter in light of
Contreras. The Court of Appeal subsequently resolved the appeal in Bell in a nonpublished
opinion. (People v. Bell (Aug. 2, 2018, B263022) [nonpub. opn.].) “An appellate opinion which
has been subsequently reversed by a court of superior jurisdiction, or vacated by the court which
rendered it[,] is ordinarily of no precedential value and is not to be cited as controlling authority
for any purpose.” (Occidental Life Ins. Co. v. State Bd. of Equalization (1982)
135 Cal.App.3d 845
, 848, fn. 1.) For this reason, we do not address Bell further in this opinion.
9.
(Edwards, supra, 34 Cal.App.5th at p. 186.) The First District, Division Four, rejected
the People’s contrary argument and concluded that “One Strike rapists and first degree
murderers, both aged 25 years or younger, are two groups of violent youthful offenders
who seek the opportunity to demonstrate after extended terms of imprisonment that they
should rejoin society” and “are, for purposes of section 3051, ‘“‘similarly situated.’”’”
(Id. at p. 195.)
Relying on dicta from the California Supreme Court’s decision in Contreras,
supra,
4 Cal.5th 349
, coupled with the distinction between murder and other crimes
drawn by the United States Supreme Court in several cases, the appellate court also
concluded that “section 3051’s carve-out for One Strike defendants violates principles of
equal protection” because there is no “rational relationship between the disparity of
treatment and a legitimate governmental purpose.” (Edwards, supra, 34 Cal.App.5th at
p. 197.)8 The court rejected the People’s argument “that the Legislature ‘clearly made a
rational, moral judgment that the public should be protected from violent sex offenders,
and that violent sex offenders should be incarcerated for longer periods of time,’” finding
it “vague and circular.” (Edwards, supra, at p. 198.) The court was also unpersuaded by
the People’s recidivism argument because “murderers, too, recidivate,” and the People
failed to cite to “evidence that violent rapists recidivate more than other felons.” (Id. at
p. 199.) Although the court acknowledged that “the law requires no empirical support for
the hypothesized concern about recidivism,” it stated that “‘the realities of the subject
matter cannot be completely ignored .…’” (Ibid.)
8 Edwards cited Miller v. Alabama (2012)
567 U.S. 460
, 479 (Miller) (mandatory LWOP
sentence for juveniles violates 8th Amend.), Graham v. Florida (2010)
560 U.S. 48
, 74–75 (8th
Amend. forbids LWOP sentence for nonhomicide offenses), Kennedy v. Louisiana (2008)
554 U.S. 407
, 446 (8th Amend. forbids death penalty for child rape), and Coker v. Georgia (1977)
433 U.S. 584
, 597 (8th Amend. forbids death penalty for rape of adult woman). (Edwards,
supra, 34 Cal.App.5th at pp. 196–197.)
10.
In Williams, another One Strike sentencing case involving a young adult offender,
the Fourth District, Division One, disagreed with Edwards. The court assumed for the
sake of argument that the One Strike offenders and murderers are similarly situated for
the purpose of challenging section 3051, subdivision (h) (Williams, supra, 47
Cal.App.5th at p. 489, review granted), but concluded that excluding young adult
offenders sentenced under the One Strike law from youth offender parole hearings under
section 3051 does not violate equal protection because “the threat of recidivism by
violent sexual offenders—as demonstrated by the Legislature’s enactment of several
comprehensive statutory schemes to curb such recidivism among such offenders—
provides a rational basis for the Legislature’s decision to exclude one strikers from the
reach of section 3051” (Williams, supra, at p. 493, review granted). The court found
Edwards’s reliance on Contreras misplaced because Contreras concerned a challenge to
juvenile LWOP sentences on Eighth Amendment grounds. (Williams, supra, at pp. 492–
493, review granted.)
Most recently, in Moseley, which concerned a juvenile offender sentenced under
the One Strike law, the Second District, Division Two, disagreed with Edwards and
followed Williams, with one justice dissenting. (Moseley, supra, 59 Cal.App.5th at
pp. 1168–1171.) The majority concluded that youthful murderers and youthful sex
offenders are not similarly situated, and the risk of recidivism underlying the
Legislature’s distinction between the two groups is rational. (Id. at p. 1170.)
Moseley was not persuaded by the Edwards court’s conclusion that youthful One
Strike offenders and youthful murderers eligible for relief under section 3051 are
similarly situated because they “are ‘both aged 25 years or younger [and] are two groups
of violent youthful offenders who seek the opportunity to demonstrate after extended
terms of imprisonment that they should rejoin society.’” (Moseley, supra, 59
Cal.App.5th at p. 1169, quoting Edwards, supra, 34 Cal.App.5th at p. 195.) In reaching a
contrary result, Moseley opined, “[T]here is no established precedent that supports this
11.
conclusion. If a common interest in rejoining society after an extended imprisonment
were the proper standard, nearly every inmate would be similarly situated for any statute
with an ameliorative effect on an inmate’s sentence.” (Ibid.) Further, Moseley concluded
that “offenders who commit different crimes are not similarly situated.” (Ibid., citing
People v. Macias (1982)
137 Cal.App.3d 465
, 472–473.)
In analyzing whether a rational basis for the exclusion of juvenile One Strike
offenders exists, Moseley observed that “there are significant public safety concerns that
support the exclusion of these sex offenders from youth offender parole consideration,
including recidivism,” and the “Legislature has long expressed special concern for
recidivism among sex offenders.” (Moseley, supra, 59 Cal.App.5th at p. 1170.) Given
the deferential standard of review, the majority found that concerns over the risk of
recidivism provide a rational basis for the exclusion of One Strike offenders pursuant to
section 3051, subdivision (h). (Moseley, supra, at p. 1170.)
b. Three Strikes Offenders
In the context of a young adult offender sentenced under the Three Strikes law, the
First District, Division Five, distinguished that district’s earlier decision in Edwards and
held that section 3051, subdivision (h), does not violate the equal protection clause.
(People v. Wilkes (2020)
46 Cal.App.5th 1159
, 1167.) Assuming youthful offenders
sentenced under the Three Strikes law are similarly situated to other youthful offenders,
the court concluded “the Legislature could rationally determine that the former—‘a
recidivist who has engaged in significant antisocial behavior and who has not benefited
from the intervention of the criminal justice system’ [citation]—presents too great a risk
of recidivism to allow the possibility of early parole.” (Id. at p. 1166.) “‘The “One
Strike” law is an alternative, harsher sentencing scheme that applies to specified felony
sex offenses,’ such that ‘“a first-time offense can result in one of two heightened
sentences.”’ [Citation.] The distinguishing characteristic of Three Strikes offenders, of
course, is that they are not being sentenced for a first-time offense. Thus, the ample
12.
authority rejecting equal protection challenges from Three Strikes offenders did not apply
in Edwards.” (Id. at pp. 1166–1167.)
c. LWOP Sentences
Finally, Courts of Appeal have rejected equal protection challenges to
section 3051, subdivision (h), by young adult offenders serving LWOP sentences for
special circumstance murder. (In re Williams (2020)
57 Cal.App.5th 427
, 430; People v.
Acosta (2021)
60 Cal.App.5th 769
, 772 (Acosta); People v. Jackson (Feb. 23, 2021,
D077095) ___ Cal.App.5th ___ [2021 Cal.App. Lexis 152, *1–2].) In In re Williams, the
Second District, Division Five, concluded that in extending youth offender parole
hearings to adults under age 24 and then to those under age 26, “[t]he legislative history
suggests the Legislature was motivated by dual concerns: that lengthy life sentences did
not adequately account for, first, the diminished culpability of youth, and second,
youthful offenders’ greater potential for rehabilitation and maturation.” (In re Williams,
supra, at p. 434.) As to the second legislative concern, potential for rehabilitation and
maturation, the court was “inclined to agree” that young adult offenders serving LWOP
sentences were similarly situated to young adult offenders serving non-LWOP sentences.
(Id. at p. 435.) As to the first legislative concern, diminished culpability, it reached a
different conclusion, stating, “While a 21-year-old special circumstance murderer may,
in fact, have diminished culpability compared with a 28 year old who commits the same
crime, he is nonetheless more culpable and has committed a more serious crime than a 21
year old convicted of a nonspecial circumstance murder.” (Ibid.)
Assuming the two groups were nevertheless similarly situated, the court found a
rational basis underlying the difference in treatment, explaining, “The Legislature has
prescribed an LWOP sentence for only a small number of crimes. These are the crimes
the Legislature deems so morally depraved and so injurious as to warrant a sentence that
carries no hope of release for the criminal and no threat of recidivism for society. In
excluding LWOP inmates from youth offender parole hearings, the Legislature
13.
reasonably could have decided that youthful offenders who have committed such
crimes—even with diminished culpability and increased potential for rehabilitation—are
nonetheless still sufficiently culpable and sufficiently dangerous to justify lifetime
incarceration.” (In re Williams, supra, 57 Cal.App.5th at p. 436.)
In Acosta, the Fourth District, Division Three, held that “young adult LWOP
offenders are similarly situated to young adult offenders sentenced to life and juvenile
offenders sentenced to life or LWOP … for the purpose of section 3051.” (Acosta, supra,
60 Cal.App.5th at p. 778.) Building on In re Williams, the Acosta court stated,
“Section 3051’s amendments were designed ‘to account for
neuroscience research that the human brain—especially those portions
responsible for judgment and decisionmaking—continues to develop into a
person's mid-20s.’ (Edwards, supra, 34 Cal.App.5th at p. 198.) ‘[T]he
purpose of section 3051 is not to measure the extent of punishment
warranted by the offense the individual committed but to permit the
evaluation of whether, after years of growth in prison, that person has
attained the maturity to lead a law-abiding life outside of prison. Both a
person sentenced to LWOP for a crime committed while under 18 and a
person receiving the same sentence for a crime committed when 18 or
slightly older committed their offenses before their character was
necessarily “well formed” and when their judgment and decisionmaking
were likely to improve. Both are similarly situated for the purpose of
evaluating whether they have outgrown the youthful impulses that led to
the commission of their offenses.’ ([In re] Jones [(2019)] 42 Cal.App.5th
[477,] 485–486 (conc. opn. of Pollak, J.).)
“‘Likewise, a person who committed an offense between 18 and 25
years of age serving a sentence permitting parole and a person who
committed an offense at the same age serving an LWOP sentence are
similarly situated for the purpose of determining whether they have
outgrown the youthful impulses that led to the commission of their
offenses.’ ([In re] Jones, supra, 42 Cal.App.5th at p. 486 (conc. opn. of
Pollak, J.).) As between ‘youth offenders sentenced to LWOP and those
sentenced to a parole-eligible life terms,’ ‘one could say that both groups
committed their crimes before their prefrontal cortexes reached their full
functional capacity, when their characters were not yet fully formed. Both
groups are equally likely to demonstrate improved judgment and
decisionmaking as they reach emotional and cognitive maturity.’ (In re
14.
Williams[, supra,] … 57 Cal.App.5th [at p. ]435 .…)” (Acosta, supra, 60
Cal.App.5th at p. 779.)
However, as in In re Williams, the court determined there was a rational basis for
the difference in treatment. (Acosta, supra, 60 Cal.App.5th at p. 779.) It opined that the
extension of section 3051 to include juvenile LWOP offenders was the result of the
United States Supreme Court’s decision in Montgomery v. Louisiana (2016) ___ U.S.
___ [
136 S.Ct. 718
] (Montgomery) and the statutory amendment allowed for compliance
“without resorting to costly resentencing hearings.” (Acosta, supra, at p. 779.)9 Because
Montgomery did not compel the same treatment of young adult offenders, age, therefore,
provides “a constitutionally sufficient basis for distinguishing juvenile LWOP offenders
from young adult LWOP offenders.” (Id. at p. 780.)
With respect to young adult offenders serving LWOP and non-LWOP sentences,
the court recognized that “‘[t]he Legislature has prescribed an LWOP sentence for only a
small number of crimes. These are the crimes the Legislature deems so morally depraved
and so injurious as to warrant a sentence that carries no hope of release for the criminal
and no threat of recidivism for society.’” (Acosta, supra, 60 Cal.App.5th at p. 780.)
Therefore, “the severity of the crime committed” provides a rational basis for
distinguishing between the groups. (Ibid.)
In the most recent case, the Fourth District, Division One, assumed that young
adult offenders sentenced to LWOP and juvenile offenders sentenced to LWOP are
similarly situated for purposes of resolving the defendant’s claims but found that
“because both the United States Supreme Court and our high court have repeatedly found
the bright line drawn between juveniles and nonjuveniles to be a rational one when it
9 In Montgomery, the United States Supreme Court held that Miller announced a
substantive rule of constitutional law and, therefore, applied retroactively, but states could
“remedy a Miller violation by permitting juvenile homicide offenders to be considered for
parole, rather than by resentencing them.” (Montgomery, supra, ___ U.S. at p. ___ [136 S.Ct. at
p. 736].)
15.
comes to criminal sentencing,” the difference in treatment between the two groups based
on age withstands scrutiny. (People v. Jackson, supra, ___ Cal.App.5th at p. ___ [2021
Cal.App. Lexis 152, *9]. As to the treatment of young adult LWOP offenders versus
young adult offenders convicted of first degree murder and eligible for parole, the court
concluded that because an LWOP sentence is based on the existence of aggravating
factors that are absent in non-LWOP first degree murder, the two groups are not similarly
situated. (Id. at p. ___ [2021 Cal.App. Lexis, *13–16.) Furthermore, “public safety, and
the desire to punish those persons who commit first degree special circumstance murder
more harshly than persons who commit first degree murder without aggravating
circumstances, provide a plausible basis for our Legislature to treat these two
classifications differently for purposes of section 3051.” (Id. at p. ___ [2021 Cal.App.
Lexis, *17.)
2. Exclusion of Young Adult One Strike Offenders under
Section 3051, Subdivision (h), Satisfies Rational Basis Review
Turning to the issue before us, the California Supreme Court is poised to resolve
the split of authority concerning the exclusion of young adult One Strike offenders from
youth offender parole hearing eligibility under section 3051, subdivision (h), while
extending eligibility to first degree murderers. The question presented is a close and
difficult one. However, as a court of intermediate review, we conclude that the
Legislature’s decision to leave the exclusion in place while otherwise broadening the
reach of the statute by age indicates a deliberate policy choice and we cannot say that it
has done so without any rational basis, at least as to young adult sex offenders, which is
the question we confront.10
10 The exclusion of juvenile One Strike offenders presents a more troublesome question
given the Legislature’s addition of section 3051, subdivision (b)(4), which provides for youth
offender parole hearings for juvenile offenders sentenced to LWOP (Contreras, supra, 4 Cal.5th
at pp. 381–382), and we express no view on Moseley.
16.
We acknowledge the persuasive value of reasoned California Supreme Court dicta
(People v. Tovar (2017)
10 Cal.App.5th 750
, 759, citing People v. Rios (2013)
222 Cal.App.4th 542
, 563), and our high court’s admonition that “legal doctrine evolves over
time, and appellate courts have the capability and the responsibility to recognize and
explain such changes when they occur” (K.R. v. Superior Court (2017)
3 Cal.5th 295
,
308–309). It remains, however, that “‘a decision does not stand for a proposition not
considered by the court’” (People v. Delgado (2017)
2 Cal.5th 544
, 590; accord, Wishnev
v. The Northwestern Mutual Life Ins. Co. (2019)
8 Cal.5th 199
, 217), and Contreras, on
which Edwards relies, was decided on Eighth Amendment grounds as to defendants who
were juveniles at the time of their controlling offenses (Contreras, supra, 4 Cal. 5th at
p. 356). The court did not ultimately analyze whether there is a rational basis to exclude
either juveniles or young adult offenders sentenced under the One Strike law from youth
offender parole hearings under section 3051, although it recognized the defendants’
argument “that the current treatment of juvenile One Strike offenders is anomalous given
that juveniles convicted of special circumstance murder and sentenced to LWOP are now
eligible for parole during their 25th year in prison,” and observed “that the current penal
scheme for juveniles may warrant additional legislative attention.” (Contreras, supra, at
p. 382, italics added; see § 3051, subd. (b)(4).)11
As previously stated, in rejecting recidivism concerns as a rational basis for
excluding young adult One Strike offenders from youth offender parole hearings, the
Edwards court stated that “murderers, too, recidivate,” and although it acknowledged the
absence of any such requirement, it criticized the People for failing to provide empirical
data. (Edwards, supra, 34 Cal.App.5th at p. 199.) However, the law has long recognized
11 These distinctions were also recognized in People v. Jackson, supra, ___ Cal.App.5th at
p. ___ [2021 Cal.App. Lexis 152, *10–14].
17.
that sex offenders present a higher risk of recidivism and rational basis review is
deferential.
We agree that society holds the sanctity of human life in the highest regard and,
therefore, murder represents the most serious of all crimes. (Contreras, supra, 4 Cal.5th
at p. 382, citing Graham v. Florida, supra, 560 U.S. at p. 69 & Kennedy v. Louisiana,
supra,
554 U.S. at p. 438.) We do not agree that this necessarily fatally undermines
recidivism concerns as a rational basis for excluding young adult One Strike sex
offenders from section 3051. Courts have repeatedly recognized the existence of
uniquely “grave concerns over the high rate of recidivism among convicted sex offenders
and their dangerousness as a class. The risk of recidivism posed by sex offenders is
‘frightening and high.’” (Smith v. Doe (2003)
538 U.S. 84
, 103, quoting McKune v. Lile
(2002)
536 U.S. 24
, 34; accord, People v. Mosley (2015)
60 Cal.4th 1044
, 1061; In re
Alva (2004)
33 Cal.4th 254
, 289; see People v. Garcia (2017)
2 Cal.5th 792
, 797 [“Like
most jurisdictions, California requires convicted sex offenders to register as a means of
enabling law enforcement to manage the serious risk to the public of recidivism.”]; Doe
v. State of California (2017)
8 Cal.App.5th 832
, 841 [“Reducing recidivism and
protecting the public from sexual predators … are ‘public issues or an issue of public
interest.’”].)
“It is both the prerogative and the duty of the Legislature to define degrees of
culpability and punishment, and to distinguish between crimes in this regard.” (People v.
Turnage (2012)
55 Cal.4th 62
, 74; accord, Johnson, supra, 60 Cal.4th at p. 887; People v.
Wilkinson (2004)
33 Cal.4th 821
, 840.) The One Strike law, effective November 30,
1994, was enacted to “ensure[] serious sexual offenders receive long prison sentences
whether or not they have any prior convictions. (Stats. 1993–1994, 1st Ex. Sess., ch. 14,
§ 1, pp. 8570–8572.) According to a general statement of purpose in the legislative
history, the targeted group preys on women and children, cannot be cured of its aberrant
impulses, and must be separated from society to prevent reoffense. (Sen. Com. on
18.
Judiciary, Analysis of Sen. Bill No. 26 (1993–1994 1st Ex. Sess.) as introduced Feb. 2,
1994, pp. 9–10.)” (People v. Wutzke (2002)
28 Cal.4th 923
, 929–930, fn. omitted.)
“Almost all of the enumerated crimes involve the use of force or fear” (id. at p. 930), and
“reflect the use of violent or predatory means that increase the victim’s ‘vulnerability’”
(ibid., quoting People v. Palmore (2000)
79 Cal.App.4th 1290
, 1296; accord, People v.
Garcia (2017)
17 Cal.App.5th 211
, 223; People v. Luna (2012)
209 Cal.App.4th 460
,
471).
“A classification in a statute is presumed rational until the challenger shows that
no rational basis for the unequal treatment is reasonably conceivable” (Chatman, supra, 4
Cal.5th at p. 289), and “[n]othing compels the state ‘to choose between attacking every
aspect of a problem or not attacking the problem at all’” (People v. Barrett (2012)
54 Cal.4th 1081
, 1110). “Far from having to ‘solve all related ills at once’ [citation], the
Legislature has ‘broad discretion’ to proceed in an incremental and uneven manner
without necessarily engaging in arbitrary and unlawful discrimination [citations].” (Ibid.)
In United States v. Kebodeaux, which involved a challenge to a federal sex
offender registration requirement enacted after the respondent had served his sentence for
a sex offense, the United States Supreme Court recognized that “[t]here is evidence that
recidivism rates among sex offenders are higher than the average for other types of
criminals.” (United States v. Kebodeaux (2013)
570 U.S. 387
, 395–396.) In upholding
the requirement, the court recognized the existence of conflicting evidence, but pointed
out that all that was required of Congress was a rational basis for the conclusion reached.
(Id. at p. 396.)
In this instance, the Legislature was tasked with balancing the competing policy
concerns of public safety and evolution in the law driven by the differences in moral
culpability and brain development of youthful offenders 25 years of age and younger
versus adult offenders over the age of 25. The One Strike law specifically applies to
certain sex offenses where the offender was convicted of a prior sex offense, convicted of
19.
committing a sex offense against multiple victims, or convicted of committing a sex
offense in a manner that increased the victim’s vulnerability. (§ 667.61, subds. (c)–(e).)
In attempting to strike a balance between competing concerns, the Legislature could have
chosen to distinguish among groups of serious or violent offenders and exclude those
groups it determined present a heightened risk of recidivism, including Three Strikes
offenders with a demonstrated history of recidivism and One Strike sex offenders, whom
it could have concluded present a greater risk of recidivism as a class. This provides a
rational basis for the differential treatment between groups of offenders and we may not
demand more on review.
We recognize that the One Strike law metes out extremely harsh punishment, and
given the evolution in the law regarding the treatment of both juvenile and young adult
offenders, the Legislature may wish to revisit the sentencing scheme itself or its inclusion
in subdivision (h) of section 3051, particularly in light of its decision to extend youth
offender parole hearings beyond juveniles to, at present, young adult offenders who were
25 years old or younger at the time of their crimes. However, “the rational basis standard
does not give courts free license to judge the wisdom or desirability of statutes or to act
as a super-Legislature” (Johnson, supra, 60 Cal.4th at pp. 880–881, fn. 5; accord,
Chatman, supra, 4 Cal.5th at p. 289), and “the logic behind a potential justification [does
not] need to be persuasive or sensible—rather than simply rational” (Chatman, supra, at
p. 289).
We echo the concerns articulated by Justice Segal in People v. Montelongo (2020)
55 Cal.App.5th 1016
, 1035–1041 (conc. opn. of Segal, J.) (Montelongo). The defendant
in Montelongo was sentenced to LWOP for a special circumstance murder committed
when he was 18 years old, and by virtue of his LWOP sentence, he is categorically
ineligible for a youth offender parole hearing. (Id. at pp. 1020–1021.) Justice Segal
highlighted the tension between, one, the Legislature’s determination that advances in
science concerning brain development of juveniles and young adults into their mid-20’s
20.
versus those adults beyond their mid-20’s justified the extension of youth offender parole
hearings to young adults and, two, its continued exclusion of certain categories of youth
offenders based on their sentences, which are necessarily tethered to underlying crimes.
(Id. at pp. 1035–1041 (conc. opn. of Segal, J.).) Justice Segal pointed out, “[D]espite the
Supreme Courts pronouncement in Miller that the differences between fully developed
and youthful brains are not ‘crime-specific,’ the Legislature excluded from the benefits of
sections 1170 and 3051 young adult offenders who committed certain specific crimes;
namely, those crimes subjecting them to life in prison without the possibility of parole.”
(Id. at pp. 1038–1039 (conc. opn. of Segal, J.).) “[W]e are stuck with the line that the
United States Supreme Court drew at 18 years old in Roper in 2005 and that the
Legislature imported into section 3051. (See Roper [v. Simmons (2005)] 543 U.S. [551,]
574; § 3051, subd. (b)(4); maj. opn., ante, at pp. 1031–1032].) Whether and where the
Legislature should draw a new line in section 3051 is not for us to say, but it may be time
for the Legislature to rethink the old Roper line.” (Id. at p. 1041, fn. omitted (conc. opn.
of Segal, J.).)
In a concurring statement following denial of review, Justice Liu agreed with
Justice Segal and stated, “[T]here is a colorable claim that section 3051’s exclusion of
certain juvenile offenders based on their controlling offense ‘violates principles of equal
protection and the Eighth Amendment’ or ‘constitutes “unusual punishment” within the
meaning of article I, section 17 of the California Constitution.’ (Contreras, supra, 4
Cal.5th at p. 382; see … Williams[, supra,] 47 Cal.App.5th [at p. 493], review granted …;
… Edwards[, supra,] 34 Cal.App.5th [at pp. ]197, 199 [‘section 3051’s carve-out for One
Strike defendants violates principles of equal protection’ and is ‘unconstitutional on its
face’].) Because there is a substantial question whether section 3051’s exclusion of 18-
to 25-year-olds sentenced to life without parole violates equal protection, ‘there is good
reason for legislative reconsideration’ of the statute. (In re Jones[, supra,] 42
Cal.App.5th [at pp. 486–487] (conc. opn. of Pollak, J.).)” (Montelongo, supra, 55
21.
Cal.App.5th at pp. ___, review denied Jan. 27, 2021, S265597 [2021 Cal. Lexis 620, *5–
6] (conc. stmt. of Liu, J.).)
Thus, we are cognizant of the tensions that presently exist.12 However, rational
basis review “sets a high bar before a law is deemed to lack even the minimal rationality
necessary for it to survive constitutional scrutiny. Coupled with a rebuttable presumption
that legislation is constitutional, this high bar helps ensure that democratically enacted
laws are not invalidated merely based on a court’s cursory conclusion that a statute’s
tradeoffs seem unwise or unfair.” (Chatman, supra, 4 Cal.5th at p. 289.) At present,
certain classes of young adult offenders, including those sentenced under the Three
Strikes law, the One Strike law or to LWOP, do not qualify for youth offender parole
hearings. As previously stated, our Legislature has repeatedly expressed concern that sex
offenders present a heightened risk of recidivism and the One Strike law targets sex
offenders with prior convictions or multiple victims, or those who committed their sex
crimes in circumstances “that increase the victim’s ‘vulnerability.’” (People v. Wutzke,
supra,
28 Cal.4th at p. 930.) Under these circumstances, we cannot say that there is no
rational basis for the exclusion of young adult One Strike offenders from youth offender
parole hearings, and, in the absence of a contrary view articulated by our high court, we
conclude that resolution of the growing tension in the law lies with the Legislature in the
first instance. We again acknowledge the question is a difficult one, but we conclude we
are constrained to reject defendant’s facial challenge to section 3051, subdivision (h),
based on his exclusion, as a young adult One Strike offender, from youth offender parole
hearings.
12 The Acosta court also spoke to these tensions, stating, “We do have some reservations
about our analysis.” (Acosta, supra, 60 Cal.App.5th at p. 780.) “In the end, however, we cannot
insert our own policy concerns into the analysis.” (Id. at p. 781.) The court invited the
Legislature to reconsider these issues, as do we. (Ibid.)
22.
II. Entitlement to Relief from Simple Kidnapping Finding Given Aggravated
Kidnapping Finding
Next, defendant argues that the jury’s finding of simple kidnapping under
section 667.61, subdivision (e)(1), as the “lesser” enhancement, should be vacated given
its finding of the greater aggravated kidnapping under section 667.61, subdivision (d)(2).
The People point out that the One Strike law is an alternate sentencing scheme, but
contend that, in any event, there is no obligation to strike an enhancement on the ground
that it is a lesser included enhancement. We agree with the People that defendant’s claim
lacks merit.
Section 667.61 is an alternate sentencing scheme, as the People assert, and the
jury’s findings under subdivisions (d) and (e) of the statute are penalty allegations that
determine the sentence mandated under the scheme. (People v. Anderson (2009)
47 Cal.4th 92
, 102 & 119; accord, People v. Acosta (2002)
29 Cal.4th 105
, 118–119, 120 &
fn. 7; People v. Betts (2020)
55 Cal.App.5th 294
, 299–300.) In this instance, the jury’s
finding under section 667.61, subdivision (d)(2), informs the sentence on counts 2 and 3,
and its finding under section 667.61, subdivision (e)(1), informs the sentence on count 1.
(People v. Betts, supra, at p. 300.)
Defendant concedes he is unaware of any authority for the proposition that he is
entitled to have a “lesser” penalty allegation stricken (see People v. Robinson (2016)
63 Cal.4th 200
, 213, fn. 7 [“The lesser included offense doctrine applies in three areas:
(1) jury instructions …; (2) sentence modification under section 1181, subdivision 6 …;
and (3) multiple convictions, which may not be based on necessarily included offenses
[citation].”]), and his assertion that the penalty allegation findings are analogous to
greater and lesser offenses, entitling him to relief from the lesser finding of simple
kidnapping, is otherwise undeveloped (Paterno v. State of California (1999)
74 Cal.App.4th 68
, 106 [“An appellate court is not required to examine undeveloped claims,
nor to make arguments for parties.”]). “On appeal, we presume that a judgment or order
23.
of the trial court is correct, ‘“[a]ll intendments and presumptions are indulged to support
it on matters as to which the record is silent, and error must be affirmatively shown.”’”
(People v. Giordano (2007)
42 Cal.4th 644
, 666.) Defendant has not shown an error
relating to the jury’s penalty allegation findings and accordingly, we reject his challenge.
III. Imposition of Parole Revocation Restitution Fine
Finally, the trial court imposed a restitution fine in the amount of $300 and a
corresponding parole revocation restitution fine in the amount of $300, suspended.
(§§ 1202.4, subd. (b), 1202.45, subd. (a).) The parties agree that the parole revocation
restitution fine imposed by the trial court should be stricken because defendant was
sentenced to two LWOP terms and a term of 25 years to life.
Section 1202.45, subdivision (a), provides: “In every case where a person is
convicted of a crime and his or her sentence includes a period of parole, the court shall, at
the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional parole revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4.” As the parties contend, defendant’s
sentence in this case does not include a determinate term under section 1170 and,
therefore, the trial court erred in imposing a parole revocation restitution fine. (People v.
Brasure (2008)
42 Cal.4th 1037
, 1075; People v. Jenkins (2006)
140 Cal.App.4th 805
,
819; People v. Oganesyan (1999)
70 Cal.App.4th 1178
, 1183.) The $300 parole
revocation restitution fine shall be stricken.
24.
DISPOSITION
The parole revocation restitution fine imposed under section 1202.45,
subdivision (a), is stricken, and the trial court shall issue and forward an amended
abstract of judgment to the appropriate authorities. Except as modified, the judgment is
affirmed.
MEEHAN, J.
I CONCUR:
DeSANTOS, J.
25.
POOCHIGIAN, Acting P.J., Concurring.
I concur with the majority opinion as to the disposition.
I write separately to respectfully state that I do not adopt the views expressed in
the majority opinion characterizing the severity of the punishment or embrace the
concurring opinion in People v. Montelongo (2020)
55 Cal.App.5th 1016
. Dicta
contained in a concurring opinion, as well as a dissent, do not state the majority view and
are not binding. (People v. Lopez (2012)
55 Cal.4th 569
, 585; Rosato v. Superior Court
(1975)
51 Cal.App.3d 190
, 211.) I see no reason to expound upon these particular views
but otherwise agree with the majority opinion.
POOCHIGIAN, Acting P.J. |
4,669,331 | 2021-03-18 23:02:12.229993+00 | null | https://www.courts.ca.gov/opinions/nonpub/E069770.PDF | Filed 3/18/21 P. v. Castrejon CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E069770
v. (Super. Ct. No. INF1300585)
JOEL CASTRO CASTREJON, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos,
Judge. Affirmed.
Ferrentino & Associates and Correen Ferrentino, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Scott C.
Taylor and Alana Cohen Butler, Deputy Attorneys General, for Plaintiff and Respondent.
1
I.
INTRODUCTION
A jury convicted defendant and appellant, Joel Castrejon, of multiple sex offenses
against his sister-in-law, Jane Doe, when she was between the ages of 10 and 13. (Pen.
1
Code, § 288, subd. (a) ; counts 1 & 8; § 288, subd. (b)(1); counts 2 & 5; § 269, subd.
(a)(5); counts 3 & 6; § 269, subd. (a)(4); counts 4 & 7; § 289, subd. (j) count 9; § 288a,
subd. (c)(1); count 10.) The trial court sentenced him to 24 years, plus 30 years to life.
On appeal, defendant contends the trial court prejudicially erred by excluding
evidence that (1) Jane Doe falsely accused her cousin, I., of inappropriate sexual conduct,
(2) Jane Doe intended to report defendant’s abuse when she reported I.’s abuse, but
instead reported only I.’s abuse, and (3) Jane Doe received text messages of a sexual
nature from her boyfriend within a year before she reported defendant’s abuse.
Defendant also contends the trial court impermissibly imposed $700 in assessments and a
$300 restitution fine without considering his ability to pay them. We reject defendant’s
arguments and affirm the judgment.
1
Unless otherwise indicated, all further statutory references are to the Penal
Code.
2
II.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was married to A.C., one of Jane Doe’s three older sisters. When Jane
Doe was about 10 years old, defendant began molesting her. The abuse continued over
2
the years, and progressively became more forceful.
Jane Doe was 12 or 13 years old when defendant abused her for the last time.
About a month later, Jane Doe disclosed the abuse to her mother. Jane Doe’s mother
called the sheriff’s department to report the abuse. An investigator came to their home to
assist Jane Doe’s mother with a controlled call to confront defendant about Jane Doe’s
allegations. During the call, defendant initially denied having done anything to Jane and
suggested that she was making up the allegations. However, defendant then said he was
“willin’ to go through whatever we gotta go through to . . . take care of it” and that he did
not want to lose his family. Defendant apologized to Jane Doe’s mother that she “had to
go through this” and said, “this will never, ever happen again.” Defendant was arrested
shortly thereafter.
2
Because the nature of defendant’s abuse is not relevant to the issues on appeal,
we do not discuss it in detail.
3
III.
DISCUSSION
A. Prior False Report
Defendant asserts the trial court prejudicially erred by excluding evidence that
Jane Doe falsely accused her cousin, I., of molesting her. We disagree.
1. Additional background
Before trial, defendant moved to introduce several pieces of evidence under
Evidence Code section 782, including evidence that Jane Doe allegedly falsely reported
that I. molested her.
Jane Doe’s sister, A.C., testified at the hearing on the motion. According to A.C.,
about a year before Jane Doe told her about defendant’s abuse, when Jane Doe was 12 or
13 years old, Jane Doe told her that I., who is about five years older than Jane Doe, had
touched her breasts and sometimes tried to touch her butt, though she did not specify
when. Jane Doe told A.C. that she did not tell I. to stop and that she did not know why he
was doing it. A.C. did not report Jane Doe’s allegations because Jane Doe and I. “were
kids, and they didn’t know what they were doing.” A.C. attributed the incident to Jane
Doe’s and I.’s hormones “going crazy.”
Jane Doe also testified at the hearing. According to Jane Doe, she told A.C. and
one of her other sisters about I.’s conduct when she was 12 or 13, but the incident
occurred when she was about eight years old. Jane Doe explained that although I. tried to
4
kiss her, he did not touch her body. Jane Doe denied saying that I. tried to touch her
breasts or butt.
Defendant moved to include evidence of Jane Doe’s allegations against I. under
Evidence Code section 782. Defendant argued Jane Doe’s allegations against I. were
false and were therefore admissible to impeach her credibility. The trial court denied the
request, reasoning that I.’s alleged conduct was not sufficiently similar to defendant’s
abuse of Jane. The trial court explained that Jane Doe accused defendant of multiple
instances of serious sexual abuse. On the other hand, Jane Doe denied I. did anything
more than try to kiss her.
2. Applicable Law and Standard of Review
Generally, a victim of sexual assault may not be questioned about specific
instances of his or her prior sexual activity. (Evid. Code, § 1103, subd. (c); People v.
Woodward (2004)
116 Cal.App.4th 821
, 831.) Evidence Code section 782 provides a
limited exception to that general rule, and allows evidence of prior sexual conduct if it is
“offered to attack the credibility of the complaining witness.” (Evid. Code, § 782, subd.
(a); People v. Daggett (1990)
225 Cal.App.3d 751
, 757 [explaining that a motion to
include evidence under Evidence Code section 782 requires “an offer of proof of the
relevancy of the evidence of sexual conduct”]; accord, People v. Bautista (2008)
163 Cal.App.4th 762
, 781-782.) We review the trial court’s decision to admit or exclude
evidence under Evidence Code section 782 for an abuse of discretion. (People v.
Bautista, supra, at p. 782.)
5
3. Analysis
We conclude the trial court did not abuse its discretion by excluding evidence of
I.’s alleged inappropriate conduct with Jane Doe. To begin with, defendant moved to
include the evidence under Evidence Code section 782, but that provision was
inapplicable. Under certain circumstances, Evidence Code section 782 allows the
introduction of evidence about a victim’s prior sexual conduct if the fact that the victim
engaged in the sexual conduct is relevant. (See People v. Daggett, supra, 225
Cal.App.3d at p. 757; accord, People v. Bautista, supra, 163 Cal.App.4th at p. 781
[Evidence Code section 782 allows admission of the victim’s prior sexual activity if it “is
relevant to the victim’s credibility”].) Here, however, defendant has never argued that
I.’s alleged sexual conduct, or Jane Doe’s involvement in it, was relevant. Instead,
defendant contends Jane Doe’s allegedly false report about I.’s behavior was relevant.
As defendant acknowledges in his opening brief, Evidence Code section 782 “says
nothing about impeaching [a] complaining witness with prior false statements.”
Defendant also concedes (and we agree) that the “sexual conduct” as contemplated
by Evidence Code section 782 “does not apply to th[e] conduct attributed to Jane Doe.”
Accordingly, Evidence Code section 782 did not apply. The trial court therefore did not
abuse its discretion by denying defendant’s motion under Evidence Code section 782 to
3
admit evidence of Jane Doe’s allegations about I.’s conduct.
3
For this reason, we need not address defendant’s argument that the trial court
erred by finding that I.’s conduct fell within the meaning of “sexual conduct” under
[footnote continued on next page]
6
Although the People did not argue the point in the trial court, evidence of Jane
Doe’s allegedly false report about I.’s conduct was not admissible for the additional
reason that Jane Doe’s allegations were never proven false. (See People v. Smith (2016)
1 Cal.App.5th 266
, 275 [appellate court may affirm on any basis supported by the
record].) Evidence that a witness made a prior false report of sexual abuse does not
reflect on the witness’s credibility “unless proven to be false.” (People v. Miranda
(2011)
199 Cal.App.4th 1403
, 1424; accord, People v. Tidwell (2008)
163 Cal.App.4th 1447
, 1457 [“a prior complaint not proven to be false has no . . . bearing” on the
complainant’s credibility]; see also People v. Mestas (2013)
217 Cal.App.4th 1509
, 1518
[“The purpose of an Evidence Code section 782 hearing is to establish the truth and
probative value of the offer of proof, not to allow a fishing expedition based on sketchy
and unconfirmed allegations.”].) This is because “[t]he value of the evidence as
impeachment depends upon proof that the prior charges were false.” (People v. Tidwell,
supra, at p. 1458.)
Thus, Jane’s allegations about I. would only be relevant if false. (People v.
Tidwell, supra, 163 Cal.App.4th at p. 1458.) However, no clear showing of falsity was
made. (Ibid.) Because there was no “conclusive evidence” that Jane Doe falsely accused
I., the trial court rightly excluded evidence of her allegations about I.’s conduct. (Id. at p.
1458.)
Evidence Code section 782. Even if it did, the trial court properly excluded it because the
conduct itself was not relevant to Jane Doe’s credibility.
7
B. Evidence that Jane Doe Intended to Report Defendant’s Conduct When She
Reported I.’s Conduct
At the hearing on defendant’s Evidence Code section 782 motion, Jane Doe
testified that she reported I.’s conduct in response to A.C.’s asking her if someone was
touching her. When they asked who was touching her, she told them I. was, “because
[she] didn’t want to say [defendant]” was. Jane Doe explained that she was “originally
going to tell them that it was [defendant] that was touching me, but [she] decided that
[she] did not want to come out yet, so [she] said [I.] was, because that was the only other
incident where a family member was touching [her] or kissing [her].”
Defendant later moved to include this aspect of Jane Doe’s testimony. Defendant
interpreted Jane Doe as testifying that her allegations about I. were about defendant, but
she accused I. instead. Defendant therefore argued Jane Doe’s testimony was relevant to
her credibility because she falsely alleged I. touched her. The trial court disagreed, and
excluded Jane Doe’s testimony.
The trial court did not abuse its discretion by doing so. We agree with the trial
court that defendant’s argument rests on an inaccurate understanding of Jane Doe’s
testimony. As the trial court correctly explained, Jane did not state that her allegations
about I. were about defendant. Rather, she unambiguously testified that when A.C. asked
her if anyone was touching her, she initially planned to report that defendant abused her,
but she decided to report only I.’s conduct. Jane Doe’s testimony therefore did not
suggest she falsely accused I. and therefore it did not affect her credibility. Because
8
defendant only argued Jane Doe’s testimony was relevant to impeach her credibility, the
trial court did not abuse its discretion by excluding it. (Evid. Code, § 350 [only relevant
evidence is admissible].)
C. Text Messages
At some point within a year before Jane Doe reported defendant’s abuse, she got
in trouble with her sisters for having received text messages of a sexual nature from her
boyfriend. Defendant moved to include evidence about the text messages, arguing that it
was relevant because it showed Jane Doe had a motive to fabricate allegations about
defendant “to divert attention” from the text messages. The trial court excluded the
evidence.
The trial court did not abuse its discretion by doing so. For one thing, it is unclear
when Jane Doe received the text messages. Jane Doe and A.C. could only recall that
Jane Doe received the messages within about a year of Jane Doe reporting defendant’s
abuse, and defendant provided no evidence of a temporal connection between the
incidents. More to the point, there is no evidence in the record beyond defendant’s
unsupported speculation that Jane Doe accused defendant of his abuse because she got in
trouble for the text messages. The “‘exclusion of evidence that produces only speculative
inferences is not an abuse of discretion.’” (People v. Cornwell (2005)
37 Cal.4th 50
, 81.)
The trial court did not err in excluding evidence about the text messages from Jane Doe’s
boyfriend.
9
D. Harmless Error
Even if the trial court erred by excluding the evidence outlined above, any
resulting error was harmless. Reversal is not required unless it is reasonably probable
defendant would have received a more favorable outcome had the excluded evidence
been admitted. (People v. Aranda (2012)
55 Cal.4th 342
, 354.)
At the outset, we reject defendant’s argument that the exclusion of the evidence
violated his federal constitutional rights. “[T]he routine application of provisions of the
state Evidence Code law does not implicate a defendant’s constitutional rights.” (People
v. Jones (2013)
57 Cal.4th 899
, 957.) “[O]nly evidentiary error amounting to a complete
preclusion of a defense violates a defendant’s federal constitutional right to present a
defense.” (People v. Bacon (2010)
50 Cal.4th 1082
, 1104, fn. 4, italics added.) That did
not occur here. At worst, the trial court only excluded some evidence tenuously related
to Jane Doe’s credibility, which did not preclude defendant from asserting a defense.
“Because the trial court merely rejected some evidence concerning” defendant’s defense,
the trial court did not violate defendant’s federal constitutional rights. (People v. McNeal
(2009)
46 Cal.4th 1183
, 1203.)
Regardless, we conclude it is not reasonably probable that defendant would have
received a more favorable outcome had the trial court admitted the evidence he contends
was erroneously excluded. Had the evidence been admitted, it likely would have had
little, if any, effect on Jane Doe’s credibility. As to her allegations about I., they were
never confirmed to be false, so evidence about them had “no . . . bearing on her
10
credibility.” (People v. Tidwell, supra, 163 Cal.App.4th at p. 1457.) Similarly, the fact
that she intended to report I.’s conduct when she reported defendant’s abuse, but reported
only I.’s conduct, had nothing to do with her credibility. Contrary to defendant’s
argument, Jane Doe did not testify that her allegations about I. were about defendant.
Jane Doe simply testified that she initially planned to report defendant’s abuse, but then
decided to report only I.’s behavior.
As to the text messages, nothing in the record supports defendant’s speculation
that Jane Doe lied about defendant’s abuse to divert her family’s attention from her
boyfriend’s text messages. Defendant offered no proof to link Jane Doe’s reporting his
abuse to the text messages she received upwards of a year earlier. Accordingly, had the
trial court admitted evidence about the text messages, it is not reasonably probable that
Jane Doe’s credibility would have been impeached so that defendant would have received
a more favorable outcome.
Finally, the evidence of defendant’s guilt was strong. In particular, defendant’s
statements to Jane Doe’s mother during the pretext call were highly inculpatory.
Although defendant initially denied Jane Doe’s allegations, he later apologized for
putting Jane Doe’s mother “through this,” stated he was “willing to go through whatever”
was necessary, and that “this will never, ever happen again.”
We therefore conclude the trial court’s challenged evidentiary rulings, even if
erroneous, were harmless.
11
E. Fine and Assessments
The trial court imposed a $300 restitution fine (§ 1202.4.), a $400 court operations
assessment (§ 1465.8), and a $300 criminal conviction assessment (Gov. Code, § 70373).
Relying on People v. Dueñas (2019)
30 Cal.App.5th 1157
(Dueñas), defendant asserts
the trial court prejudicially erred in imposing the fine and assessments without
determining his ability to pay them.
As to the $700 in assessments, because the trial court did not determine whether
defendant could pay them, “[u]nder Dueñas, this was error, and we must remand for an
ability to pay hearing unless the error was harmless.” (People v. Taylor (2019)
43 Cal.App.5th 390
, 401.) We assume without deciding that the trial court impermissibly
imposed the $300 restitution fine without determining defendant’s ability to pay because
we conclude the error, if any, was harmless.
“‘[E]very able-bodied’ prisoner is required to work. (§ 2700; Cal. Code Regs., tit.
15, § 3040, subd. (a).) A prisoner’s assignment to a paid position ‘is a privilege’ that
depends on ‘available funding, job performance, seniority and conduct.’ (Cal. Code
Regs., tit. 15, § 3040, subd. (k); accord, People v. Rodriguez (2019)
34 Cal.App.5th 641
,
649.) Wages in prison range from $12 to $56 per month, depending on the job and skill
level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty percent of
[defendant’s] wages and trust account deposits will be deducted to pay any outstanding
restitution fine, plus another 5 percent for the administrative costs of this deduction.
12
(§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f).)” (People v. Taylor,
supra, 43 Cal.App.5th at p. 402.)
Nothing in the record suggests defendant will be unable to work while serving his
sentence. Defendant was arrested about a month before his 30th birthday. At the time,
he was earning about $2,800 per month as a “Landscape Supervisor” and his wife was
earning about $1,100 per month. At the time of his sentencing, defendant reported that
he was not taking any medications, he was in “fine” physical health, and was in “good”
mental health with no handicaps or ailments.
We assume defendant will obtain a prison job paying the minimum of $12 per
hour. At that rate, defendant will pay off the $1,000 in restitution and assessments in
about seven years into his 50-plus year prison sentence. Because defendant is young (37
years old) and in good health, he “will have sufficient time to earn these amounts during
his sentence, even assuming [he] earns nothing more than the minimum.” (People v.
Jones (2019)
36 Cal.App.5th 1028
, 1035; see also People v. DeFrance (2008)
167 Cal.App.4th 486
, 505 [defendant sentenced to prison did not show absolute inability to
pay $10,000 restitution fine even though prison wages would make it difficult for him to
pay the fine, it would take a very long time, and the fine might never be paid].)
Accordingly, “even if we were to assume [defendant] is correct that he suffered a due
process violation when the court imposed this rather modest financial burden on him
without taking his ability to pay into account, we conclude that, on this record, because
he has ample time to pay it from a readily available source of income while incarcerated,
13
the error is harmless beyond a reasonable doubt.” (People v. Johnson (2019)
35 Cal.App.5th 134
, 139-140; accord, People v. Jones, supra, 36 Cal.App.5th at p. 1035.)
IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
Acting P. J.
We concur:
SLOUGH
J.
FIELDS
J.
14 |
4,669,332 | 2021-03-18 23:02:22.461471+00 | null | https://www.cobar.org/Portals/COBAR/Repository/Job Board/31521/2021CO17.pdf | dictating the specifics of how the legislature might comply with the reading
requirement, it is the judiciary’s prerogative and responsibility to declare that the
legislature did not comply with that requirement in this case.
The supreme court therefore agrees with the district court’s determination
that the unintelligible sounds produced by the computers on the Senate floor on
March 11, 2019, did not fulfill the reading requirement. However, unlike the
district court, the supreme court stops short of telling the legislature how to
comply with the reading requirement. It was not within the district court’s
domain to dictate the form or manner by which the legislature may comply with
the reading requirement. By prescribing how the legislature must comply with
the reading requirement, the district court trespassed upon the separation-of-
powers tenet so essential to our constitutional system of government.
Accordingly, the supreme court affirms in part and reverses in part.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2021 CO 17
Supreme Court Case No. 20SC585
C.A.R. 50 Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 19CA1130
District Court, City and County of Denver, Case No. 19CV30973
Honorable David H. Goldberg, Judge
Petitioners:
Cindi Markwell, Secretary of the Senate; and Leroy M. Garcia, Jr., President of
the Senate,
v.
Respondents:
John B. Cooke, Senator; Robert S. Gardner, Senator; and Chris Holbert, Senate
Minority Leader.
Judgment Affirmed in Part and Reversed in Part
en banc
March 15, 2021
Attorneys for Petitioners:
Recht Kornfeld, P.C.
Mark G. Grueskin
Marnie C. Adams
Denver, Colorado
Attorneys for Respondents:
Jackson Kelly, PLLC
John S. Zakhem
Denver, Colorado
Attorneys for Amicus Curiae Governor Jared Polis:
Philip J. Weiser, Attorney General
Eric R. Olson, Solicitor General
Grant T. Sullivan, Assistant Solicitor General
Stephanie Lindquist Scoville, First Assistant Attorney General
Denver, Colorado
JUSTICE SAMOUR delivered the Opinion of the Court.
JUSTICE MÁRQUEZ dissents, and JUSTICE HOOD and JUSTICE HART join
in the dissent.
JUSTICE HOOD dissents, and JUSTICE MÁRQUEZ and JUSTICE HART join
in the dissent.
2
¶1 Separation of powers among the legislative, executive, and judicial branches
of government is the foundation on which our democracy rests and the fount from
which our liberties flow. In urging ratification of the U.S. Constitution, James
Madison referred to separation of powers as “the sacred maxim of free
government.” The Federalist No. 47, at 308 (James Madison) (Clinton Rossiter ed.,
1961). Indeed, it is difficult to fathom a more central precept to the spirit and
genius of America. Respect for this venerable principle requires us to afford a
certain berth of deference to the decisions and judgments of our sister branches of
government. That deference, however, is not unlimited. Where, as here, the
interpretation of a provision in our state constitution is implicated, it is both our
prerogative and responsibility to wade into the fray.
¶2 The constitutional axis on which this case revolves is the reading
requirement in article V, section 22: “Every bill shall be read by title when
introduced, and at length on two different days in each house; provided, however,
any reading at length may be dispensed with upon unanimous consent of the
members present.” Colo. Const. art. V, § 22. The question before us is whether
uploading a bill to multiple computers and using automated software to
simultaneously give voice to different portions of the bill at a speed of about 650
words per minute complies with the reading requirement in article V, section 22.
We think not.
3
¶3 There are unquestionably different ways by which the legislature may
comply with the reading requirement. But the cacophony generated by the
computers here isn’t one of them. And while we have no business dictating the
specifics of how the legislature might comply with the reading requirement, it is
our prerogative and responsibility to declare that the legislature did not comply
with that requirement in this case.
¶4 We therefore agree with the district court’s determination that the
unintelligible sounds produced by the computers did not fulfill the reading
requirement. But we affirm in part and reverse in part because we conclude that
it was not within the district court’s domain to dictate the form or manner by which
the legislature may comply with the reading requirement. “[I]n our constitutional
system the commitment to the separation of powers is too fundamental for us to
pre-empt congressional action by judicially decreeing what accords with common
sense and the public weal.” Tenn. Valley Auth. v. Hill,
437 U.S. 153
, 195 (1978)
(internal quotation marks omitted). By prescribing how the legislature must
comply with the reading requirement, the district court trespassed upon the
separation-of-powers tenet so essential to our constitutional system of
government.
4
I. Facts and Procedural History
¶5 In late February 2019, House Bill 19-1172 (“HB 1172”)—a 2,023-page
recodification of Title 12 of the Colorado Revised Statutes (“Professions and
Occupations”)—passed the Colorado House of Representatives. It was then
introduced in the Colorado Senate and assigned to the Senate Committee on the
Judiciary. On March 4, 2019, after receiving unanimous approval in that
committee, the bill was referred for consideration by the full Senate.
¶6 The events that sparked this litigation occurred on March 11, 2019, when the
bill was introduced in the Senate for its second reading. That morning, a member
of the Senate asked for unanimous consent to waive the reading of the bill at
length. Pursuant to article V, section 22 of the Colorado Constitution, Senator John
B. Cooke requested that the bill be read at length.1 Because there wasn’t
unanimous consent to dispense with an at-length reading of the bill, article V,
section 22 required that the bill be read in full. Colo. Const. art. V, § 22. A pair of
Senate staffers duly began reading the bill aloud, taking turns reading at a quick,
but intelligible pace.2 This continued until the staffers were instructed to stop,
approximately three and a half hours after they began reading the bill.
1 Senator Cooke was a prime sponsor of HB 1172 in the Senate.
2 This is not an occurrence unique to Colorado. Less than two weeks ago, clerks
in the U.S. Senate read aloud the entire 628-page COVID-19 relief bill. See Alan
5
¶7 The Senate Secretary, Cindi Markwell, then directed Senate staff to upload
HB 1172 to multiple computers and to use automated software to recite different
portions of the bill simultaneously at the maximum rate of about 650 words per
minute. It is undisputed that four to six computers were then simultaneously
used, each going over a different part of the bill, and that, together, they created a
babel of sounds.3
¶8 Through their staff, Senators Cooke and Robert S. Gardner objected to this
procedure and asked the Senate Secretary to slow down the computers.4 The
Senate Secretary declined to change course, however. Then, at 3:15 p.m., Senate
Minority Leader Chris Holbert asked the Senate President, Leroy M. Garcia, Jr., to
slow down the computers. But, like the Senate Secretary, the Senate President
refused to do so. Thus, between four and six computers continued to churn out
Fram, By Slimmest of Margins, Senate Takes Up $1.9T Relief Bill, AP News (Mar. 4,
2021) [https://perma.cc/V6VE-895Y] (observing that one senator who was “at his
desk for most of the night” appeared “to follow along silently, one sheet at a
time”).
3 We have listened to a representative sample of the sounds produced by the
computers and have confirmed that they were unintelligible. See Colorado
Channel, Colorado Senate 2019 Legislative Day 067,
http://www.youtube.com/watch?time_continue=12835&v=QCpq_3jlP30.
4 Senator Gardner was also a prime sponsor of HB 1172 in the Senate.
6
unintelligible sounds for approximately four hours until the process completed
shortly after 5 p.m.
¶9 The next morning, Senators Cooke, Gardner, and Holbert (“respondents”)
filed a verified complaint for injunctive relief and declaratory judgment against
Senate President Garcia and Senate Secretary Markwell (“petitioners”) in Denver
District Court. Almost immediately, the court granted a temporary restraining
order preventing petitioners from: (1) “refusing to read legislation”—including
HB 1172—“in an intelligible fashion” without unanimous consent to dispense
with the reading requirement, and (2) passing HB 1172 in violation of article V,
section 22 “by failing to read the bill out loud on two consecutive days.”
¶10 Respondents then filed a motion for a preliminary injunction. On March 19,
2019, the court held a hearing during which Senator Gardner testified about the
unintelligible sounds produced by the computers. After listening to an audio
recording of those sounds, the court agreed that they were indecipherable.
¶11 At the end of the hearing, the court granted a preliminary injunction. In a
subsequent written order, the court examined whether the issue before it was
justiciable, recognizing that it lacked authority to resolve nonjusticiable political
questions. The court concluded that “judicial intervention at this juncture in the
legislative process [was] appropriate and warranted” because “[w]hen a dispute
arises that requires constitutional interpretation[,] it is incumbent upon the courts
7
to resolve the issue.” Since respondents’ requests for relief required the
interpretation of the reading requirement in article V, section 22, the court “[did]
not perceive” the case to involve a nonjusticiable political question.
¶12 Having determined that it could hear the case, the court turned to whether
the process that unfolded on the Senate floor on March 11, 2019, constituted
“read[ing]” for purposes of article V, section 22. The court held that it did not. It
reasoned that “using multiple computers to read simultaneously different
portions of a bill . . . at 650 words per minute [was] not within legitimate limits.”
The court noted that it could not “discern a single word” from the audio recording.
¶13 Next, the court applied the factors from Rathke v. MacFarlane,
648 P.2d 648
,
653–54 (Colo. 1982), to ascertain whether a preliminary injunction was
appropriate. As pertinent here, it found that: (1) respondents had a reasonable
probability of success on the merits because “using multiple computers to read
different portions of the bill at one time, at a speed the mind cannot comprehend,
compromises and violates the legislative process”; (2) a preliminary injunction
would prevent the real, immediate, and irreparable harm that would flow from a
bill being passed in violation of the constitution; and (3) granting a preliminary
injunction would protect the public interest by allowing HB 1172 to be read “in a
comprehensible fashion.” Weighing all the Rathke factors, the court ruled that
respondents had met their burden on their request for a preliminary injunction.
8
¶14 The court thus entered a preliminary injunction, pursuant to C.R.C.P. 65(f),
directing the Senate Secretary to comply with the reading requirement by
“employ[ing] a methodology that is designed to read legislation in an intelligible
and comprehensive manner, and at an understandable speed.” The Senate later
passed HB 1172, in compliance with this directive, and the Governor ultimately
signed the bill into law on April 25, 2019.
¶15 On May 8, 2019, the court made the injunction permanent and granted
respondents’ request for a declaratory judgment. The court reiterated that:
(1) “using five computers reading different portions of [HB 1172] at the same time
at an incomprehensible speed” violated the reading requirement in article V,
section 22, and (2) the Senate Secretary must read all future legislation “in an
intelligible manner and at an understandable speed” upon a member’s objection
to a request to dispense with the reading requirement.
¶16 Petitioners appealed to the court of appeals. But the parties thereafter filed
a joint C.A.R. 50 motion seeking direct review by our court. We granted the
motion.5
5 The issues we agreed to review are as follows:
1. Whether the District Court erred in finding that a dispute over the manner
of the State Senate’s “reading” of a pending bill, pursuant to Colo. Const.,
9
II. Analysis
¶17 This case requires us to consider the interwoven issues of justiciability,
constitutional interpretation, and injunctive and declaratory relief. We first
discuss the controlling standards of review. We then consider, but ultimately
reject, petitioners’ contention that, under Baker v. Carr,
369 U.S. 186
, 217 (1962), and
its Colorado progeny, the question of whether the unintelligible computer sounds
complied with the reading requirement is a nonjusticiable political question
outside our purview.
¶18 After determining that this dispute is justiciable and properly before us, we
draw guidance from established principles of constitutional interpretation and
hold that the unintelligible sounds that emanated from the computers did not
comply with the reading requirement. But, unlike the district court, we stop short
of telling the legislature how to comply with the reading requirement.
art. V, Sec. 22, was justiciable, rather than finding it was a political question
and thus refuse to exercise jurisdiction.
2. Whether the District Court correctly evaluated the requirements for
injunctive relief to direct the manner of the State Senate’s “reading” of a
pending bill.
3. Whether the District Court erred in granting declaratory relief, in light of
non-textual parameters it established to direct bill readings in the State
Senate for House Bill 19-1172 and future bills.
10
¶19 We wrap up our discussion by addressing the district court’s permanent
injunction and declaratory judgment. Because both forms of relief dictated the
specific manner by which the legislature must comply with the reading
requirement, we conclude that they went too far. Accordingly, we affirm in part
and reverse in part.6
A. Standards of Review
¶20 We begin our analysis on a rare patch of common ground. The parties agree,
and we concur, that issues of constitutional interpretation are questions of law that
are subject to de novo review. Gessler v. Colo. Common Cause,
2014 CO 44
, ¶ 7,
327 P.3d 232
, 235.
¶21 In contrast to the interpretation of a constitutional provision, “[t]he grant or
denial of a preliminary injunction is a decision which lies within the sound
discretion of the trial court.” Evans v. Romer,
854 P.2d 1270
, 1274 (Colo. 1993)
(quoting Rathke, 648 P.2d at 653). Likewise, the decision whether to enter a
6 We recognize that issuing injunctive relief prior to the enactment of a bill
interferes with the legislative process and is unwarranted absent “extraordinary
circumstances.” Lewis v. Denver City Waterworks Co.,
34 P. 993
, 995 (Colo. 1893).
However, we did not grant certiorari review on whether the district court had
authority, supported by extraordinary circumstances, to issue pre-enactment
injunctive relief in this case. Therefore, we decline to address the question.
11
declaratory judgment is within the discretion of the trial court. Saxe v. Bd. of Trs.
of Metro. State Coll. of Denver,
179 P.3d 67
, 72 (Colo. App. 2007).
¶22 Generally, we show deference to a ruling within the trial court’s discretion;
only if such a ruling is manifestly unreasonable, arbitrary, or unfair will we
overturn it. Evans, 854 P.2d at 1274. “If, however, the issue being reviewed
concerns only legal, rather than factual[,] questions,” we owe no deference to the
trial court’s ruling and our review is de novo. State ex rel. Salazar v. Cash Now Store,
Inc.,
31 P.3d 161
, 164 (Colo. 2001) (addressing a trial court’s ruling on a motion for
a preliminary injunction); see also Zab, Inc. v. Berenergy Corp.,
136 P.3d 252
, 254
(Colo. 2006) (“Whether a trial court may exercise its discretion in granting
declaratory relief under the [Colorado Uniform Declaratory Judgment Law] is a
matter of statutory interpretation, which we review de novo.”).
B. Determining Whether Legislative Action Comports
with Constitutional Requirements Is Squarely Within the
Judiciary’s Wheelhouse
¶23 Before getting to the marrow of the matter, we must first address whether
this case presents the kind of nonjusticiable political question “the resolution of
which should be eschewed by the courts,” Colo. Gen. Assembly v. Lamm,
704 P.2d 1371
, 1378 (Colo. 1985), in order to honor the doctrine of separation of powers,
Colo. Common Cause v. Bledsoe,
810 P.2d 201
, 205 (Colo. 1991) (citing Colo. Const.
art. III). Like the district court, we conclude that the issue of whether the
12
legislature complied with the reading requirement on March 11, 2019, requires
constitutional interpretation and is thus a prime candidate for judicial resolution.
Contrary to petitioners’ arguments, this conclusion is supported by both United
States Supreme Court jurisprudence and Colorado case law.
¶24 In Baker, the United States Supreme Court identified the characteristics of a
nonjusticiable political question, explaining:
Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for
resolving it; or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; or the
impossibility of a court’s undertaking independent resolution
without expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning adherence to a
political decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question.
369 U.S. at 217
. But the meaningful utility of these characteristics has been
questioned by well-respected legal scholars. See, e.g., Erwin Chemerinsky, Federal
Jurisdiction 153 (6th ed. 2007) (expressing the view that the Baker characteristics
“seem useless in identifying what constitutes a political question,” and observing
that “most important constitutional provisions,” including those that courts have
never hesitated to interpret, “are written in broad, open-textured language and
certainly do not include ‘judicially discoverable and manageable standards’”).
13
¶25 Helpful or not, the Baker characteristics cannot be mechanically applied here
because Colorado district courts, unlike their federal counterparts, are courts of
general jurisdiction. Colo. Const. art. VI, § 9; Lobato v. State,
218 P.3d 358
, 369–70
(Colo. 2009). This critical difference between federal and state judicial authority is
widely recognized and has been noted by none other than Baker’s authoring
justice. See William J. Brennan, Jr., State Constitutions and the Protection of Individual
Rights,
90 Harv. L. Rev. 489
, 501 (1977) (“[S]tate courts that rest their decisions
wholly or even partly on state law need not apply federal principles of standing
and justiciability that deny litigants access to the courts.”).
¶26 Even so, we have consistently considered the characteristics outlined in
Baker in our previous forays into the realm of justiciability.7 And, importantly,
mindful of those characteristics, we have found justiciable a constitutional
question similar to the one we confront today. See Bledsoe, 810 P.2d at 206.
¶27 In Bledsoe, we were called upon to determine whether alleged violations of
the “Give A Vote to Each Legislator” (“GAVEL”) amendment to article V of the
Colorado Constitution presented nonjusticiable political questions. Id. at 205. The
7 Lobato is the exception. In Lobato, after evaluating “the critique of Baker” in the
context of “affirmative state constitutional rights such as the education clause” at
issue there, we found “that the Baker test d[id] not apply.” 218 P.3d at 368–70.
14
GAVEL amendment “prohibit[ed] members of the General Assembly from
committing themselves, or requiring other members to commit themselves,
‘through a vote in a party caucus or any other similar procedure[] to vote in favor
of or against any bill . . . or other measure or issue pending or proposed to be
introduced in the general assembly.’” Id. at 203 (quoting Colo. Const. art. V, § 22a).
The alleged violations of the GAVEL amendment in Bledsoe were related to voting
commitments given by majority caucus members prior to the introduction of an
appropriations bill into the General Assembly. Id. at 204.
¶28 Notably, like the reading requirement, the GAVEL amendment was aimed
at ensuring the integrity of the enactment of bills. Compare Proceedings of the
Constitutional Convention of 1875 725 (1907) (“To afford protection from hasty
legislation, it is required that all bills . . . shall be read on . . . different days in each
house before being passed”) (emphasis added),8 and In re House Bill No. 250,
57 P. 49
, 50 (Colo. 1899) (“The object” of the printing requirement, which was adopted
8 The framers of the state constitution and the people of the State of Colorado
sought to afford protection from hasty legislation through four contemporaneous
requirements: the reading requirement; the printing requirement, which provides
that all bills must be printed; the requirement that only one subject be embraced
by each bill; and the requirement that no bill be introduced (except for general
government expenses) after the first twenty-five days of the legislative session. See
Proceedings of the Constitutional Convention of 1875 725 (1907).
15
in conjunction with the reading requirement, “is to prevent, so far as possible,
fraud and trickery and deceit and subterfuge in the enactment of bills, and to
prevent hasty and ill-considered legislation.”), with Legislative Council of the
Colorado General Assembly, An Analysis of 1988 Ballot Proposals 21 (Aug. 16, 1988)
[https://perma.cc/U2N3-G837] (under the GAVEL amendment, “[l]egislators
will be given constitutional protection from being obligated to vote a certain way
because of a party caucus position. The end result will be that the debate and vote
on bills will reflect an exchange of ideas between differing ideologies rather than
perfunctory floor debate”). Our analysis in Bledsoe, then, is of particular relevance.
¶29 Evaluating the concerns raised by the Baker Court, we concluded in Bledsoe
that:
Our interpreting these [constitutional] provisions in no way infringes
on the powers and duties of the coequal departments of our
government; moreover, we do not find present any of the political-
question characteristics identified by the United States Supreme
Court. On the contrary, the issue before us “is one traditionally
within the role of the judiciary to resolve,” for “it is peculiarly the
province of the judiciary to interpret the constitution and say what
the law is.” We have decided numerous other cases that have raised
issues of whether legislative actions violated statutory or
constitutional provisions, and we have not held that the nature of
such questions automatically renders them nonjusticiable political
questions. We decline to find that the constitutional issues presented
in this case constitute nonjusticiable political questions.
Bledsoe, 810 P.2d at 206 (internal citations omitted). So too here—the political-
question characteristics set forth in Baker are glaringly absent, and our
16
interpretation of the constitutional provision under challenge in no way
transgresses the bounds of another branch of government.
¶30 Unlike a policy decision or a value judgment, constitutional interpretation
is not an issue “best left for resolution by the other branches of government, or ‘to
be fought out on the hustings and determined by the people at the polls.’” Id. at
205 (quoting People ex rel. Tate v. Prevost,
134 P. 129
, 133 (Colo. 1913)). Rather, it is
one that is “peculiarly [within] the province of the judiciary.” Id. at 206 (quoting
Lamm, 704 P.2d at 1378).
¶31 And so, though we deliberately write narrowly today out of respect for our
coordinate branch of government charged with enacting laws, we decline to find
that this case presents a question that’s off limits to the judiciary. “It cannot be
forgotten that . . . the judicial department has imposed upon it the solemn duty to
interpret the laws in the last resort. However delicate that duty may be, we are
not at liberty to surrender, or to ignore, or to waive it.” In re Legis. Reapportionment,
374 P.2d 66
, 68 (Colo. 1962).
C. The Unintelligible Computer Sounds Did Not Comply
with the Reading Requirement
¶32 Since we have concluded that this case is justiciable, we proceed to settle the
parties’ disagreement. Before getting ahead of ourselves, though, we pause to
underscore the constricted scope of the question we resolve today: Did the
unintelligible sounds generated by the computers on the Senate floor on March 11,
17
2019, satisfy the reading requirement in article V, section 22? Although we answer
the question in the negative, we abstain from specifying the form or manner by
which the legislature may comply with the reading requirement. Where, as here,
a “constitutional requirement can be complied with in a number of ways,” our task
is limited: We simply “determine whether the method actually chosen is in
conformity,” In re Interrogatories of Governor Regarding Certain Bills of Fifty-First Gen.
Assembly,
578 P.2d 200
, 208 (Colo. 1978)—no more, no less. Thus, while it falls to
us to discern whether the unintelligible computer sounds complied with the
reading requirement, the possible forms or manners of compliance fall within “the
sole province of the Legislature.” In re Interrogatories from House of Representatives
Concerning Senate Bill No. 24, Thirty-Ninth Gen. Assembly,
254 P.2d 853
, 857 (Colo.
1953).
¶33 Whether the legislature adhered to the reading requirement here hinges on
our interpretation of article V, section 22. In interpreting a constitutional
provision, our obligation is twofold: to “prevent an evasion of [the constitution’s]
legitimate operation” and to effectuate “the intentions of the framers of our
constitution and the people of the State of Colorado.” Bledsoe, 810 P.2d at 206–07.
The starting post for our construction is the “ordinary and popular meaning” of
the plain language of the constitutional provision. Gessler v. Smith,
2018 CO 48
,
¶ 18,
419 P.3d 964
, 969 (quoting Colo. Ethics Watch v. Senate Majority Fund, LLC,
18
2012 CO 12
, ¶ 20,
269 P.3d 1248
, 1253–54). In discerning the ordinary and popular
meaning of an undefined word in a constitutional provision, we may consult
definitions in recognized dictionaries. Wash. Cnty. Bd. of Equalization v. Petron Dev.
Co.,
109 P.3d 146
, 152 (Colo. 2005).
¶34 Recall that the reading requirement provides in pertinent part: “Every bill
shall be read by title when introduced, and at length on two different days in each
house . . . .” Colo. Const. art. V, § 22 (emphasis added). The constitution does not
define the word “read.” What, then, is its ordinary and popular meaning?
¶35 Predictably, the parties come to loggerheads over the answer to this
question, each side advocating for the dictionary definitions most compatible with
its respective position. But we need not decide which definition reigns supreme.
It suffices to declare that the unintelligible computer sounds did not conform with
any of the proffered definitions or the definitions that we have independently
consulted.
¶36 An 1866 edition of Webster’s Dictionary (roughly contemporaneous with
the 1876 adoption of the Colorado Constitution and the reading requirement)
defined “read” to mean: “[t]o utter or pronounce written or printed words, letters
or characters in the proper order; to repeat the names or utter the sounds customarily
annexed to words, letters or characters.” Read, A Dictionary of the English Language
818 (10th ed. 1866) [https://perma.cc/BEZ8-CW9J] (emphases added). We deem
19
it significant that under this definition, which petitioners fully embrace in their
reply brief, the unintelligible sounds produced by the computers clearly did not
constitute a “read[ing]” of HB 1172. The words of the bill were certainly not
uttered or pronounced in their proper order. Nor were the sounds that
customarily accompany those words ever uttered. Instead, the computers
combined to create a noisy mishmash. The indiscernible sounds generated by the
computers could not have been confused with the sounds that customarily
accompany the words of HB 1172.
¶37 An 1890s Webster’s Dictionary is equally unavailing for petitioners. That
dictionary defined “read” to mean, among other things: (1) “[t]o interpret; to
explain”; (2) “[t]o tell; to declare; to recite”; (3) “[t]o go over, as characters or
words, and utter aloud, or to recite to one’s self inaudibly; to take in the sense of,
as of language, by interpreting the characters with which it is expressed; to
peruse”; (4) “to know fully; to comprehend”; and (5) “[t]o discover or understand
by characters, marks, features, etc.; to learn by observation.” Read, Webster’s
International Dictionary 1194 (1890). The unintelligible computer sounds fit
within none of these definitions. There was no way to interpret, explain, know
fully, comprehend, learn, discover, or understand the text of HB 1172 by listening
to the noise made by the computers. And that noise could not have been fairly
characterized as telling, declaring, reciting, perusing, going over words and
20
reciting, or “tak[ing] in the sense of language.” Id. What the computers produced
was pure dissonance.
¶38 Current dictionaries define “read” along similar lines and reveal that the
meaning of the word has not changed substantially since article V, section 22 was
adopted in 1876. See, e.g., Read, Merriam-Webster Online Dictionary
[https://perma.cc/XCH4-TV3N] (defining “read” as “to utter aloud the printed
or written words of”); Read, Collins Online Dictionary [https://perma.cc/VS44-
TA5R] (defining “read” as to “say the words aloud”). Again, what came out of the
computers were incomprehensible sounds, not words uttered or said aloud.
¶39 These and other definitions demand the same conclusion: Whatever the
legitimate contours of the reading requirement, the unintelligible sounds from the
computers do not fall within them. Put differently, while there are no doubt
different ways to describe the noise made by the computers, “read[ing]” isn’t one
of them.
¶40 Significantly, today’s decision aligns with the animating purpose behind the
reading requirement. This is a strong bang to the gong that signals that petitioners’
interpretation of the reading requirement is untenable. As we mentioned, the
cardinal rule of constitutional interpretation calls on us to give life to the intent of
the framers and the people of the State of Colorado. Bledsoe, 810 P.2d at 206. We
underscore that the objective of the reading requirement is “[t]o afford protection
21
from hasty legislation,” which, in turn, helps preserve the integrity of the bill-
enactment process. Proceedings of the Constitutional Convention of 1875 725 (1907);
see also In re House Bill No. 250, 57 P. at 50 (the goal of the printing requirement,
which was enacted hand-in-hand with the reading requirement, is “to prevent, so
far as possible, fraud and trickery and deceit and subterfuge in the enactment of
bills, and to prevent hasty and ill-considered legislation”). Our review of the
inscrutable computer sounds leads us to proclaim without hesitation that they can
in no way be reasonably viewed as consistent with the reading requirement’s
objective. To the contrary, accepting the jumbled computer sounds as “read[ing]”
under article V, section 22 would directly undermine the purpose of the reading
requirement.
¶41 The district court was of a like mind and held that the unintelligible
computer sounds did not constitute “read[ing]” in accordance with article V,
section 22. And we affirm that part of its judgment. But the court didn’t stop
there. It went on to tell the legislature how it must comply with the reading
requirement. As we foreshadowed earlier and as we discuss in some detail next,
this was error.
22
D. The District Court’s Permanent Injunction and
Declaratory Judgment Impermissibly Prescribed How the
Legislature Must Comply with the Reading Requirement
¶42 At the outset, we acknowledge that any question relating to the relief
provided vis-à-vis HB 1172 has been rendered moot by the bill’s subsequent
passage and enactment into law. But our inquiry doesn’t end there because the
district court’s final order applies to future legislation as well. We therefore must
consider whether the court exceeded its authority in prescribing how the
legislature must comport with the reading requirement in the future.
¶43 As relevant here, the separation of powers doctrine requires no less and
permits no more than to have us interpret the constitution and determine whether
the legislature complied with it. Consequently, while that doctrine confers upon
us the prerogative and responsibility to decide that the legislature failed to comply
with the reading requirement on March 11, 2019, it prohibits us from dictating to
our coequal branch of government how to comply with the reading requirement
moving forward. Under the Colorado Constitution, “the judiciary’s authority to
coerce legislators to comply with constitutional provisions governing the
enactment of legislation is exceedingly limited.” Bledsoe, 810 P.2d at 210. We have
cautioned that in cases involving the legislature, “the judiciary’s role in large part
is limited to measuring legislative enactments against the standard of the
constitution, and declaring them null and void if they are violative of the
23
constitution.” Id. In line with that sentiment, the form or manner by which the
General Assembly enacts legislation is part of its sole province. In re Senate Bill No.
24, 254 P.2d at 857.
¶44 In its final order, the district court made permanent the preliminary
injunction it had issued earlier and then granted respondents’ request for a
declaratory judgment. In so doing, the court directed “the Secretary of the Senate,
upon a proper objection,” to comply with the reading requirement by
“employ[ing] a methodology that is designed to read legislation in an intelligible
and comprehensive manner, and at an understandable speed.” It similarly
instructed the Secretary of the Senate to “read legislation, including [HB 1172], in
an intelligible manner and at an understandable speed.”
¶45 This part of the district court’s final order is problematic because it imposed
parameters around the form or manner by which the legislature may conform to
the reading requirement. It was not for the district court to spell out how to
comply with the reading requirement. Doing so encroached on the legislature’s
turf. Hence, although we agree with the court’s determination that the
unintelligible sounds from the computers did not fulfill the reading requirement
and thus violated article V, section 22, we disapprove of the court’s order to the
extent it circumscribed the form or manner by which the legislature may comply
with that requirement. Accordingly, we affirm in part and reverse in part.
24
III. Conclusion
¶46 The unintelligible sounds generated by the computers on the Senate floor
on March 11, 2019, do not constitute “read[ing]” under article V, section 22. The
district court reached the same conclusion, and we affirm that part of the
judgment.9 But we reverse the judgment in part because the district court also
impermissibly specified the form or manner by which the legislature must comply
with the reading requirement.
JUSTICE MÁRQUEZ dissents, and JUSTICE HOOD and JUSTICE HART join
in the dissent.
JUSTICE HOOD dissents, and JUSTICE MÁRQUEZ and JUSTICE HART join
in the dissent.
9 Neither side has expressed concern that our partial affirmance of the judgment
may invite challenges to previously enacted legislation, and we decline to engage
in such speculation. Regardless, it is our bounden duty to enforce the plain
meaning of the language in article V, section 22, and we may not shirk that
responsibility out of a desire to adhere to yesterday’s practices or for fear of what
tomorrow may bring.
25
JUSTICE MÁRQUEZ, dissenting.
¶47 I agree with the majority that it is our “solemn duty to interpret the laws.”
Maj. op. ¶ 31 (quoting In re Legis. Reapportionment,
374 P.2d 66
, 68 (Colo. 1962)). I
further agree that “[w]hether the legislature adhered to the reading requirement
here hinges on our interpretation of article V, section 22 [of the Colorado
Constitution].” Id. at ¶ 33. But I cannot join today’s decision because the majority
never actually interprets article V, section 22. Instead, it simply declares that what
the legislature did here violated that constitutional provision without explaining
why. Accordingly, I respectfully dissent.
¶48 The majority concludes that the computerized recitation of House Bill 1172
(“HB 1172”) on March 11, 2019, was not really a “reading” of the bill—at least for
purposes of article V, section 22. But it does not explain why this is so, reasoning
that its only task is to determine whether the reading requirement was met, “no
more, no less.” Id. at ¶ 32. One is thus left to wonder what article V, section 22 in
fact requires. Must the words of a bill be “pronounced in their proper order?” Id.
at ¶ 36. Must listeners be able to “know fully, comprehend, learn, discover, or
understand the text” of the bill being read? Id. at ¶ 37. Must the reading be done
in a manner consistent with what the majority identifies as the “animating
purpose” of the reading requirement? Id. at ¶ 40. The majority hints at all these
possibilities but does not clearly say which, if any, are constitutional requirements.
1
¶49 In my view, the plain language of article V, section 22 simply requires that
bills be “read,” or uttered aloud. Nothing more. The provision does not, for
example, demand that the bill be read “by a human voice” or “slowly enough to
be intelligible,” or that the sections of the bill be read “in sequence” or even at a
particular decibel level. Not only is this interpretation consistent with the plain
language of the provision, but it also conforms with the history and purpose of the
reading requirement and accords proper deference to actual legislative practice.
Here, because the entirety of HB 1172 was, in fact, read aloud, article V, section 22
was satisfied.
¶50 In sum, today’s decision is neither demanded by the constitution nor
appropriate under separation of powers principles or this court’s traditional
deference to the legislature’s interpretations of provisions that govern their
internal processes. Moreover, I fear that, in addition to offering no guidance on
what article V, section 22 requires, the majority’s ruling today also calls into
question the constitutional validity of previous legislation enacted following
readings similar to HB 1172.1
1 I join Justice Hood’s dissent in full but write separately to emphasize this court’s
role in interpreting the constitution as well as the plain text, history, and consistent
legislative practice with regard to article V, section 22.
2
I. This Court’s Role in Reviewing Constitutional
Challenges
¶51 I am concerned about the unduly limited role that the majority assigns this
court in reviewing the constitutionality of legislative action. We have long
understood that it is the “duty of the judicial department to say what the law is.”
Marbury v. Madison,
5 U.S. 137
, 177 (1803). But the majority suggests that it exceeds
our authority to explain what the constitution demands or “how to comply with
the reading requirement moving forward.” Maj. op. ¶ 43. Instead, the majority
concludes that this court is “permit[ted] no more than to . . . determine whether”
the constitution was violated.
Id.
Thus, while the majority correctly concludes
that we are not precluded from reviewing this case under the political question
doctrine, see id. at ¶ 31, it strips that review of much of its significance by
“abstain[ing] from specifying” what the constitution demands, id. at ¶ 32.
¶52 To be sure, this court must declare whether the constitution has been violated
in a given case. But we also have a duty “to interpret the constitution and say what
the law is.” Colo. Common Cause v. Bledsoe,
810 P.2d 201
, 206 (Colo. 1991) (quoting
Colo. Gen. Assembly v. Lamm,
704 P.2d 1371
, 1378 (Colo. 1985)) (emphasis added).
Indeed, interpretation of the law is “a function at the very core of the judicial role.”
Lamm, 704 P.2d at 1379. By articulating what the law means and what it requires,
we not only justify our determination as to whether the law has been violated in
the present case, but also indicate how similar cases should be decided in the
3
future. See generally Karl Llewellyn, The Common Law Tradition: Deciding Appeals
(1960).
¶53 The majority cites to In re Interrogatories of Governor Regarding Certain Bills of
Fifty-First General Assembly,
578 P.2d 200
, 208 (Colo. 1978), for the notion that this
court’s role is limited to stating whether legislation was constitutionally enacted,
“no more, no less.” Maj. op. ¶ 32. But in that case, we made that determination
by comparing the legislature’s actions to articulable standards imposed by the
constitution:
[W]hen the constitutional requirement can be complied with in a
number of ways, our task is to determine whether the method
actually chosen is in conformity. The critical inquiry is whether, during
final passage, the members of the legislative body were afforded the
opportunity to approve or disapprove the pending bill and whether
this individual approval or disapproval was recorded in the official
journal as mandated by [article V, sections 22–23 of] the constitution.
Fifty-First Gen. Assembly, 578 P.2d at 208 (emphasis added). Here, the majority
skips a step by “simply ‘determin[ing] whether the method actually chosen is in
conformity’” without articulating the constitutional standards on which that
determination is based. See maj. op. ¶ 32 (quoting Fifty-First Gen. Assembly,
578 P.2d at 208).2
2If the majority’s approach is meant to rectify the district court’s improper entry
of a permanent injunctive order, it is an overcorrection. The General Assembly
cannot be “restrained from passing an act, even though the constitution expressly
4
¶54 Because the majority has declined to interpret the relevant language of
article V, section 22, I now turn to that task.
II. Principles of Constitutional Interpretation
¶55 When interpreting the constitution, we begin our analysis with the plain
language of the provision at issue, giving terms their ordinary and popular
meaning. In re Interrogatory on House Joint Resolution 20-1006,
2020 CO 23
, ¶ 30,
__ P.3d __. If the language “is plain, its meaning clear, and no absurdity involved,
constitutional provisions must be declared and enforced as written.” Id. at ¶ 31
(quoting In re Great Outdoors Colo. Tr. Fund,
913 P.2d 533
, 538 (Colo. 1996)).
¶56 However, if there is ambiguity regarding “the proper interpretation of a
constitutional provision relating to the course of procedure, it should be solved in
favor of the practical construction given it by the Legislature.” Bd. of Comm’rs of
Pueblo Cnty. v. Strait,
85 P. 178
, 180 (Colo. 1906) (quoting Browning v. Powers,
38 S.W. 943
, 945 (Mo. 1897)); Great Outdoors Colo. Tr. Fund, 913 P.2d at 538 (“Where
forbids it.” Bledsoe, 810 P.2d at 208 (quoting Lewis v. Denver City Waterworks Co.,
34 P. 993
, 994 (Colo. 1893)). But declaring a legislative practice lawful or unlawful
and explaining why is different than enjoining the legislature. Id. at 211 (“In
contrast to actions seeking injunctive relief against legislators, declaratory-
judgment actions do not present the same kind or degree of affirmative
interference with legislative activities . . . . Declaratory relief, if granted, does not
‘compel[] [the legislature] to pass an act . . . nor restrain[] [it] from passing an act.”
(quoting Lewis, 34 P. at 994) (alterations in original)).
5
possible, courts should adopt a construction of a constitutional provision in
keeping with that given by coordinate branches of government.”). Indeed, for well
over a century, we have made clear that “we should show great deference to the
legislative construction of the Constitution, particularly with reference to its
construction of the procedure provided by the Constitution for the passage of
bills.” Fifty-First Gen. Assembly, 578 P.2d at 208 (quoting Strait, 85 P. at 179). Even
if we have “serious doubts as to the correctness of the legislative practice, . . . it is
our duty to resolve the doubt in favor of the validity of the act” unless the clear
text of the constitution demands otherwise. Id. (quoting Strait, 85 P. at 180).
III. The Plain Language of Article V, Section 22
¶57 Article V, section 22 of our state constitution requires that “[e]very bill shall
be read by title when introduced, and at length on two different days in each
house; provided, however, any reading at length may be dispensed with upon
unanimous consent of the members present.” Nothing in the plain language of
this provision requires the legislature to read bills in a particular way; the bills
simply must be “read.”
¶58 The word “read” is a term of “extensive and various application.” Charles
Richardson, New Dictionary of the English Language 1567 (1846). The 1866 Edition
of Webster’s Dictionary, cited by the majority, alone contains more than a dozen
definitions of the term. See Read, A Dictionary of the English Language 818 (10th ed.
6
1866) [https://perma.cc/BEZ8-CW9J]. Some of these definitions are relevant
while some—“to suppose; to guess,” for example—are not. See id.
¶59 Most dictionaries contemporaneous to the 1876 ratification of our state
constitution define the term “read” to mean, at least in part, something along the
lines of “to speak it aloud.” See Richardson, supra, at 1567; John Craig, Universal
English Dictionary, Comprising the Etymology, Definition, and Pronunciation of All
Known Words in the Language, as Well as Technical Terms Used in Art, Science,
Literature, Commerce, and Law 518 (1869) (defining “read” as “to give utterance to
the sounds which written or printed words or characters represent”); John Bouvier
& Daniel Gleason, Law Dictionary, Adapted to the Constitution and Laws of the United
States of America, and of the Several States of the American Union: With References to the
Civil and Other Systems of Foreign Law 412 (14th ed. 1878) (defining “reading” as
“the act of pronouncing aloud . . . the contents of a writing or of a printed
document”). Given the uniformity of these definitions, “[i]t cannot be maintained
that the verb ‘to read,’ in all its moods and tenses, when applied to bills for acts
pending before legislative bodies, has acquired a purely technical signification
which absolutely excludes its ordinary meaning.” Weill v. Kenfield,
54 Cal. 111
, 113
(1880) (emphasis omitted). Put simply, the term “read” as it is used in article V,
section 22 means nothing more than the ordinary act of uttering words aloud.
7
¶60 The 1866 Webster’s Dictionary cited by the majority is the only roughly
contemporaneous dictionary I found that adds the proviso “in the proper order.”
And, as the majority notes, that language was later dropped from the 1890 edition
of the same dictionary. See maj. op. ¶ 37 (citing Webster’s International Dictionary
1194 (1890)). Modern dictionaries similarly decline to adopt a definition of “read”
that depends on pronouncing words in a particular sequence. See, e.g., Read,
Merriam-Webster Online Dictionary, [https://perma.cc/C83K-LB8E] (defining
“read” as “to utter aloud the printed or written words of”). 3
¶61 Accordingly, I conclude that the plain language of article V, section 22 is
unambiguous and requires only that every word of the bill at issue be uttered
aloud. Because every word of HB 1172 was, in fact, recited aloud, the reading
requirement in article V, section 22 was met.4 But even if the provision were
3 Common sense also indicates that “read” need not always mean “read in the
proper order.” A teacher who reads a book of short stories aloud to a class but
reads the individual stories out of sequence has still “read” that book in the
ordinary sense of the term.
4 To the extent the majority’s holding rests on its assertion that the computers
reciting the bill did not produce the “sounds that customarily accompany the
words of HB 1172,” I disagree. See maj. op. ¶ 36. Although the words were recited
quickly and in an overlapping manner, making individual words difficult to
differentiate, the “sounds that customarily accompany” each word clearly were
voiced. See, e.g., Colorado Channel, Colorado Senate 2019 Legislative Day 067
03:31:31–03:31:36, https://youtu.be/QCpq_3jlP30?t=12677 (in which the
8
ambiguous, I agree with Justice Hood that deference to the legislature demands
that we respect the General Assembly’s construction of the reading requirement.
See Hood, J., diss. op. ¶¶ 86–87. The purported purpose that the majority ascribes
to article V, section 22 does not justify reading language into the provision and
contravening longstanding legislative practice.
IV. The History and Purpose of Article V, Section 22
¶62 The majority concludes that the computerized reading of HB 1172 did not
serve what it sees as the “animating purpose” of article V, section 22: preventing
hasty and ill-considered legislation. See maj. op. ¶ 40. But this analysis of the
reading requirement’s purpose fails to consider the long history of that provision
and its now-vestigial function of informing legislators of a bill’s contents when
those legislators could not read the bill in question.
¶63 The requirement that a bill receive multiple readings before enactment dates
back to at least the 16th century in England. See Legislation and Petitions, The
History of Parliament, https://www.historyofparliamentonline.org/volume/
1604-1629/survey/xi-legislation-and-petitions [https://perma.cc/M3HW-
VBX4]. The reading requirement was instituted because, “before the age of print,
computer closest to the recording microphone clearly recites “fourteen, fifteen,
sixteen, seventeen, eighteen, nineteen”).
9
and given the impracticality of producing multiple handwritten copies, the only
means of informing Members of a bill’s contents had been for the clerk to read the
text aloud.” Id.; see also Jeremy Bentham, Essay on Political Tactics (1791), reprinted
in The Works of Jeremy Bentham Part VIII 299, 353 (John Bowring ed., 1839) (“Before
the invention of printing, and when the art of reading was unknown to three-
fourths of the deputies of the nation, to supply this deficiency, it was directed that
every bill should be read three times in the House.”).
¶64 Many states enshrined this parliamentary procedure in constitutional
provisions requiring that bills be read multiple times in the legislature prior to
enactment. See, e.g., Ala. Const., § 63; Mich. Const. art. 4, § 26; N.J. Const. art. IV,
§ 4, ¶ 6; N.M. Const. art. IV, § 15; N.C. Const. art II, § 22; Okla. Const. art. V, § 34;
Tex. Const. art. III, § 32. However, by the time Colorado’s constitution was ratified
in 1876, the “ancient practice” of reading bills aloud had become more ceremonial
than practical given that the “necessity for reading is superseded by printing.”
Luther Stearns Cushing, Law and Practice of Legislative Assemblies in the United States
of America 837 (1856); see also 1 Sutherland Statutory Construction § 10:4 (7th ed.
2020) (“When literacy was not widespread it was common practice to read bills
aloud to the assembled legislature. Some members would not have had any other
means to know what they were deciding. As literacy rates have increased amongst
elected representatives, though, there has been a commensurate decline in the
10
historical need for reading aloud.”); Bentham, supra, at 353 (“At the present day,
[in 1791,] these three readings are purely nominal.”).
¶65 Viewed in this historical context, it becomes clear that the reading
requirement’s function in preventing “hasty legislation” was not to slow down the
legislative process, but rather to inform illiterate legislators of a bill’s contents.
Given the largely ceremonial nature of the reading requirement in the modern
context, it is unsurprising that other states have given their respective
constitutional reading requirements permissive interpretations. See, e.g., Bevin v.
Commonwealth ex rel. Beshear,
563 S.W.3d 74
, 90 (Ky. 2018) (determining that “the
common legislative practice of reading only the title of the bill and electronically
publishing simultaneously the full text of the bill to the electronic legislative
journal available on every legislator’s desk satisfies the constitutional mandate”);
Gunn v. Hughes,
210 So. 3d 969
, 974 (Miss. 2017); Weill,
54 Cal. at
113–15.
¶66 In addition to the provision’s history and purpose, there is another source
that speaks to the dictates of article V, section 22: the consistent practice of the
General Assembly in interpreting and implementing the reading requirement.
V. Legislative Practice & Practical Effects
¶67 For decades, the General Assembly—under both Democratic and
Republican control—has allowed for multi-voice, simultaneous reading of bills to
comply with the reading requirement in article V, section 22. For example, in 2003,
11
when a Democratic senator requested that a twenty-eight-page bill be read at
length during debate over a legislative redistricting plan, the Republican majority
complied with the request by enlisting fifteen people to read different pages from
the bill simultaneously. See John J. Sanko, Redistricting Passes—Senate GOP Votes
18-0 For, Rocky Mountain News, May 6, 2003, at 12A, NewsBank.5 And in 2017,
when a Republican representative requested that the entire 600-page annual
budget long bill be read at length, the Democratic majority complied by having
“about a dozen” staffers read different passages simultaneously, bringing the total
reading time down to roughly half an hour. See Vic Vela, Meet the State Capitol’s
Reading Clerks, Two Guys Who Talk Really Really Fast, CPR News (May 1, 2017),
https://www.cpr.org/2017/05/01/meet-the-state-capitols-reading-clerks-two-
guys-who-talk-really-really-fast [https://perma.cc/WF36-WWXL]. These
readings were likely just as cacophonous as was the reading of HB 1172, but they
similarly reflect the form and manner in which the legislature has chosen to
comply with the reading requirement. And it is specifically the legislature’s
“construction of the procedure provided by the Constitution for the passage of
5 This court ultimately struck down the resulting redistricting bill on other
grounds. See People ex rel. Salazar v. Davidson,
79 P.3d 1221
(Colo. 2003).
12
bills” to which we traditionally “show great deference.” Fifty-First Gen. Assembly,
578 P.2d at 208 (quoting Strait, 85 P. at 179).
¶68 What is more, requests for full-length readings are by no means infrequent;
during the 2019 legislative session alone, there were at least fifteen such requests
in the House and eighteen in the Senate. See Marianne Goodland, A Look at the
2019 Colorado General Assembly—in Numbers, Colorado Politics (May 8, 2019,
updated July 29, 2019), https://www.coloradopolitics.com/hot-sheet/a-look-at-
the-2019-colorado-general-assembly-in-numbers/article_bcc9e426-71ad-11e9-
8f3e-331d07465c78.html [https://perma.cc/RGW6-5Z8R]. Under the majority’s
interpretation of article V, section 22, such readings may take up an increasingly
substantial portion of the General Assembly’s 120-day session, limiting the work
that our legislature can accomplish. The framers of our constitution were likely
“not intent upon burdening the legislature with such an absurd waste of time.”
Bevin, 563 S.W.3d at 90.
¶69 Finally, I am concerned about the implications of the majority’s ruling today
for other bills read in a similar manner to HB 1172. Though it avoids “dictating
the specifics of how the legislature might comply with the reading requirement,”
maj. op. ¶ 3, today’s decision calls into question other bills that were read by
multiple voices or may have been unintelligible to listeners on the House or Senate
floor. For example, the reading of the 2017 budget long bill was, if anything, less
13
intelligible than the reading of HB 1172; only one of the readers had access to a
microphone and the other dozen or so readers were entirely inaudible and
unintelligible. See Colorado Channel, Colorado House 2017 Legislative Day 86 Part 2,
https://youtu.be/-n2btwYD6x8?t=30836. Does today’s decision imply that all
appropriations made by the state in 2017 were unconstitutional? The majority’s
conclusion certainly suggests this possibility. Today’s ruling casts a pall of
uncertainty over any number of legislative enactments without providing
standards under which to judge their constitutionality.
VI. Conclusion
¶70 I disagree with the majority’s conclusion that the General Assembly violated
article V, section 22 of the Colorado Constitution by having multiple computers
simultaneously read aloud the full text of HB 1172. But I am more concerned with
the precedent set today. As the majority notes, the conflict over HB 1172 is
essentially moot. But by declining to articulate what article V, section 22 demands,
the majority has more or less assured that more conflict over the reading
requirement will occur in the future. While the majority may be able to avoid
“say[ing] what the law is” today, Marbury,
5 U.S. at 177
, this court will have to do
so at some point in the future. When it does, I hope it accords appropriate weight
to the plain language, history, and consistent legislative practice concerning
14
article V, section 22. Because the majority has not done that today, I respectfully
dissent.
I am authorized to state that JUSTICE HOOD and JUSTICE HART join in
this dissent.
15
JUSTICE HOOD, dissenting.
¶71 I agree with Justice Márquez’s dissent, but I write separately to make three
additional points. First, although this court has repeatedly paid lip service to
Baker v. Carr,
369 U.S. 186
(1962), that case does not control political question
analysis under the Colorado Constitution. Second, to the extent that the word
“read” is ambiguous, the majority fails to implement Colorado’s homegrown
separation-of-powers jurisprudence by showing insufficient deference to the
Senate’s interpretation of a constitutional provision governing the internal affairs
of the legislative branch. Third, I agree with the majority that courts cannot
restrain the General Assembly from passing a bill absent extraordinary
circumstances, but I would reach the issue of whether a pre-enactment injunction
was justified here. It was not.
¶72 Overall, my concern is this: The majority lauds the separation-of-powers
doctrine but minimizes it in practice by authorizing courts to decide all cases
involving constitutional interpretation and to review the General Assembly’s
implementation of constitutional procedures de novo. Separation of powers
demands more than the majority’s rule that courts can’t tell the legislative branch
what to do but can tell it what not to do.
1
I. Baker v. Carr
¶73 The majority begins its justiciability analysis by noting that the “the
meaningful utility of [the six Baker] characteristics has been questioned by well-
respected legal scholars.” Maj. op. ¶ 24. The majority also recognizes that,
“[h]elpful or not, the Baker characteristics cannot be mechanically applied here
because Colorado district courts, unlike their federal counterparts, are courts of
general jurisdiction.” Id. at ¶ 25. The majority even quotes Justice Brennan’s
admonition that “state courts that rest their decisions . . . on state law need not
apply federal principles of . . . justiciability.” Id. (quoting William J. Brennan, Jr.,
State Constitutions and the Protection of Individual Rights,
90 Harv. L. Rev. 489
, 501
(1977)).
¶74 Despite this, the majority seems to hold its nose because “we have
consistently considered the characteristics outlined in Baker in our previous forays
into the realm of justiciability.” Id. at ¶ 26. Yet the majority doesn’t examine how
the six Baker factors would apply here. See id. at ¶¶ 26–30. Instead, it simply
reasons by analogy, holding that there’s no Baker problem in this case because
there wasn’t one in Colorado Common Cause v. Bledsoe,
810 P.2d 201
, 205–06 (Colo.
1991). Maj. op. ¶¶ 26–30. The majority’s justiciability analysis ends by labeling
the parties’ dispute as a matter of “constitutional interpretation,” id. at ¶ 30, which
2
is something “peculiarly [within] the province of the judiciary,” id. (quoting
Bledsoe, 810 P.2d at 206).
¶75 Sure, the majority reaches the right result on justiciability: Questions of
constitutional interpretation—even those affecting the procedures of another
branch—are justiciable under Colorado law. But Baker isn’t why. On the contrary,
Baker factors exist to tell federal courts when constitutional interpretation “is
entrusted to one of the political branches,” so the majority can’t be right to say that
an issue is justiciable because it involves constitutional interpretation. Rucho v.
Common Cause,
139 S. Ct. 2484
, 2494 (2019) (quoting Vieth v. Jubelirer,
541 U.S. 267
,
277 (2004)). The threshold question that the Baker factors seek to answer is who
should make the call. Yet that’s not how we’ve used it, at least not in earnest.
¶76 More typically, we invoke Baker, breeze past it, and then come home to our
rule that Colorado courts are free to decide even seemingly political questions
under the Colorado Constitution. Bledsoe is a perfect example. In Bledsoe, this
court recited the Baker factors, summarily concluded that “we do not find present
any of the [Baker] political-question characteristics,” 810 P.2d at 206, and landed
on the principle that “it is peculiarly the province of the judiciary to interpret the
constitution,” id. (quoting Colo. Gen. Assembly v. Lamm,
704 P.2d 1371
, 1378 (Colo.
1985)). See also Busse v. City of Golden,
73 P.3d 660
, 664 (Colo. 2003) (devoting two
sentences to paraphrasing the first three Baker factors and to finding that they
3
weren’t present); Meyer v. Lamm,
846 P.2d 862
, 873 (Colo. 1993) (listing the Baker
factors, mentioning that the first factor was absent, and concluding that “none of
the other Baker v. Carr factors of nonjusticiability are implicated”).
¶77 And today the majority repeats the mistake, just when it seemed that we
had kicked the habit. In Lobato v. State,
218 P.3d 358
, 363 (Colo. 2009), our most
recent political question case, we noted that “[w]e have never applied the political
question doctrine to avoid deciding a constitutional question.”1 We described
Baker as having articulated “the federal political question criteria” and held that
1 This court has found the following issues justiciable: whether Colorado’s school
finance system was constitutionally adequate, Lobato, 218 P.3d at 374; whether
state legislators had violated a constitutional prohibition against committing
themselves to voting for or against legislation at caucus meetings, Bledsoe, 810 P.2d
at 211; whether the governor’s item veto was unconstitutional because he had
allegedly vetoed only part of an item, Lamm, 704 P.2d at 1378; whether the Senate
had properly taken the “ayes and noes” when it passed a bill, In re Interrogatories
of Governor Regarding Certain Bills of Fifty-First Gen. Assembly,
578 P.2d 200
, 207
(Colo. 1978); whether a law was void due to the General Assembly’s alleged
violation of the state constitution’s publication requirement for session laws, In re
Interrogatories from House of Representatives Concerning Senate Bill No. 24, Thirty-
Ninth Gen. Assembly,
254 P.2d 853
, 856–57 (Colo. 1953); whether a law was invalid
because the Senate had unconstitutionally failed to record the vote in its journal,
People ex rel. Manville v. Leddy,
123 P. 824
, 830 (Colo. 1912); whether the House had
failed to properly record a vote in its journal, Bd. of Cnty. Comm’rs v. Strait,
85 P. 178
, 180–81 (Colo. 1906); whether an amendment was “substantial” and thus
needed to be printed, In re House Bill No. 250,
57 P. 49
, 50 (Colo. 1899); and whether
the House had the power to remove its speaker, In re Speakership of the House of
Representatives,
25 P. 707
, 710 (Colo. 1891).
4
“the Baker test does not apply” to claims under the Colorado Constitution’s
guarantee of a “thorough and uniform” public school system.
Id.
at 367–68
(emphasis added). The Lobato dissent accurately recognized the case as “either an
abandonment of the political question doctrine writ large or a more limited refusal
to apply Baker to decide political questions.”
Id.
at 377 n.2 (Rice, J., dissenting).
¶78 Admittedly, Lobato involved the unusual circumstance of an affirmative
right, but our critique of Baker didn’t turn on that fact. See
id.
at 369–71. In addition
to the criticisms repeated by the majority opinion, we said that the Court’s way of
identifying unmanageable standards was itself unmanageable and we highlighted
our power to render advisory opinions on questions submitted by the legislature
or executive.
Id.
at 369–70.
¶79 Today, the majority misses an opportunity to clean up the law by admitting
that, despite our professed (but at best inconsistent) fealty to Baker, it does not
dictate the justiciability of political questions under Colorado law.
II. Insufficient Deference
¶80 Regardless of the vitality of Baker in Colorado, our case law requires courts
to decide justiciable issues with “great deference to the legislative construction of
the Constitution, particularly with reference to its construction of the procedure
provided by the Constitution for the passage of bills.” In re Interrogatories of
5
Governor Regarding Certain Bills of Fifty-First Gen. Assembly,
578 P.2d 200
, 207 (Colo.
1978) (quoting Bd. of Cnty. Comm’rs v. Strait,
85 P. 178
, 179 (Colo. 1906)).
¶81 That deference has led us to ratify the General Assembly’s implementation
of constitutional procedures even when we had “serious doubts as to the
correctness of the legislative practice” and were “not prepared to say that unaided
by the legislative construction . . . our construction would have been the same.”
Id. at 208 (quoting Strait, 85 P. at 180); see also In re Great Outdoors Colo. Tr. Fund,
913 P.2d 533
, 538 (Colo. 1996) (“Where possible, courts should adopt a
construction of a constitutional provision in keeping with that given by coordinate
branches of government.”); In re Legis. Reapportionment,
374 P.2d 66
, 69 (Colo. 1962)
(“There is . . . a presumption . . . that the Legislature has acted according to its oath
to uphold the constitution unless the contrary appears beyond doubt.”); Strait,
85 P. at 180 (“When there is a real doubt of the proper interpretation of a
constitutional provision relating to the course of procedure, it should be solved in
favor of the practical construction given it by the Legislature.” (quoting
Browning v. Powers,
38 S.W. 943
, 945 (Mo. 1897))); In re Speakership of the House of
Representatives,
25 P. 707
, 710 (Colo. 1891) (recognizing that the General
Assembly’s power to govern its own proceedings, “when exercised within
legitimate limits, is conclusive upon every department of the government”).
6
¶82 Fifty-First General Assembly is instructive. In that case, we reviewed whether
the General Assembly had complied with a constitutional requirement that a “vote
be taken by ayes and noes” when passing legislation. Fifty-First Gen. Assembly,
578 P.2d at 205 (quoting Colo. Const. art. V, § 22). The General Assembly had
adopted the eyebrow-raising practice of voting by referring to earlier attendance
roll calls such that “present” became “aye” and “absent” became “no.” Id. Since
the ayes and noes requirement did “not specify in exactly what manner the ayes
and noes are to be taken,” we looked at whether the General Assembly’s practice
could be squared with the provision’s text and purpose. Id. at 207–08; see Great
Outdoors Colo. Tr. Fund, 913 P.2d at 539 (“[T]he General Assembly is authorized to
resolve ambiguities . . . in a manner consistent with the terms and underlying
purposes of . . . constitutional provisions.”). The text was satisfied because the
ayes and noes were literally “recorded in the official journal,” and the purpose was
met because members “were afforded the opportunity to approve or disapprove
the pending bill” by objecting to the use of the previous roll call. Fifty-First Gen.
Assembly, 578 P.2d at 208. That arguable compliance prompted us to resolve our
“serious doubts” in favor of the General Assembly. Id. (quoting Strait, 85 P. at 180).
¶83 In Fifty-First General Assembly, we could have raked the General Assembly
over the coals by examining unfavorable definitions of “vote”; instead, we showed
“great deference.” Id. (quoting Strait, 85 P. at 179). In contrast, the majority seems
7
to review the Senate’s interpretation of the reading requirement with little to no
deference, measuring what the Senate did against different definitions of “read”
and concluding that the Senate violated the word’s “ordinary and popular
meaning.” Maj. op. ¶¶ 33, 36.
¶84 Indeed, the majority effectively doubles down when it states that “issues of
constitutional interpretation . . . are subject to de novo review.” Id. at ¶ 20. While
this is true in the ordinary course, we have a “duty” to resolve even “serious
doubts” in favor of the Senate’s interpretation because the reading requirement is
a “procedure provided by the Constitution for the passage of bills.” Fifty-First Gen.
Assembly, 578 P.2d at 208 (quoting Strait, 85 P. at 179–80). This crucial principle is
nowhere to be found in the majority’s discussion of the standard of review.
¶85 The majority holds that the Senate did not read House Bill 1172 (“HB 1172”)
in part because some dictionaries specify that “reading” requires words to be
“pronounced in their proper order” but the Senate’s computers read different
sections of the bill simultaneously. Maj. op. ¶ 36. Further, the majority finds that
the Senate didn’t read HB 1172 because the computers created a cacophony that
divorced the bill’s words from “the sounds that customarily accompany” them.
Id.
¶86 I agree with Justice Márquez that other dictionaries reveal that “read”
unambiguously means “nothing more than the ordinary act of uttering words
8
aloud,” which the Senate did when it caused computers to speak the entire text of
HB 1172. Márquez, J., diss. op. ¶¶ 59, 61. However, to the extent that the reading
requirement is ambiguous because it “does not specify in exactly what manner” a
bill must be read, I would still hold that the Senate sufficiently complied with the
provision’s text. Fifty-First Gen. Assembly, 578 P.2d at 207; see also Grossman v. Dean,
80 P.3d 952
, 963 (Colo. App. 2003) (interpreting the “intentionally general”
constitutional requirement that committees “consider[]” certain bills as requiring
“some level of discussion, debate, or testimony” but not “any specific form of
committee consideration in every situation”). Even if this court is “not without
serious doubts as to the correctness of the [Senate’s] practice,” separation-of-
powers concerns require us “to resolve the doubt in favor of the” Senate. Fifty-
First Gen. Assembly, 578 P.2d at 208 (quoting Strait, 85 P. at 180).
¶87 And this deferential approach is hardly some quirk of Colorado law. Just a
few years ago, the Kentucky Supreme Court addressed a challenge under
Kentucky’s reading requirement by asking whether a reading had happened that
“even plausibly comport[s] with any conception of the phrase ‘read at length’ . . .
[u]nder any plausible meaning of those words that remains faithful to the English
language.” Bevin v. Commonwealth ex rel. Beshear,
563 S.W.3d 74
, 85 (Ky. 2018). In
Bevin, the court okayed the practice of reading a bill “at length” by reciting only
the title but held that the Kentucky General Assembly had failed to do even that
9
because it had read an inaccurate title.
Id. at 90
. Yet the Kentucky Supreme Court
distinguished the facts before it from those of Gunn v. Hughes,
210 So. 3d 969
, 971
(Miss. 2017), in which a computer read a bill on its highest speed. Bevin,
563 S.W.3d at 85. “However preposterous it was [in Gunn] to physically read
aloud a bill at an incomprehensible pace, it cannot be disputed that the bill was
literally read aloud in its entirety.” Id. (“The [Mississippi Supreme] Court declined
to engage in the minutia of directing the legislature how fast or slow it must read
the bill.”).2
¶88 The majority also concludes that the speedreading of HB 1172 “can in no
way be reasonably viewed as consistent with” the reading requirement’s purpose.
Maj. op. ¶ 40. According to the majority, that purpose is “[t]o afford protection
from hasty legislation.” Id. (quoting Proceedings of the Constitutional Convention of
1875 725 (1907)). Putting to one side Justice Márquez’s point that the purpose of
the reading requirement was to inform illiterate legislators, see Márquez, J., diss.
op. ¶¶ 62–65, the majority’s argument fails on its own terms.
2 In Gunn, the Mississippi Supreme Court declined to stop the electronic
speedreading of bills, although it reached that result by holding that challenges
under Mississippi’s reading clause are nonjusticiable given the Mississippi
Constitution’s separation-of-powers doctrine, rather than through deference to the
legislature’s interpretation. 210 So. 3d at 974.
10
¶89 HB 1172 was read from approximately 10:30 a.m. to 5:20 p.m. If the purpose
of the reading requirement is delay, then that purpose was served here: The Senate
devoted seven hours of its 120-day session to a bill that recodified a statutory title.
Further, if the majority thinks that seven hours was unconstitutionally brief, the
provision’s separate rule that the bill be read “on two different days” ensures that
determined senators can always double the delay and that the Senate can’t
speedread a bill and pass it that same day. Colo. Const. art. V, § 22. And, again,
if the majority thinks that the Senate plausibly fulfilled the purpose of the reading
requirement, it must show great deference and resolve even serious doubts in
favor of the Senate.
¶90 Because the Senate arguably complied with the text and purpose of the
reading requirement, I would reverse the district court. But even if I thought that
the majority was right to affirm, I would still dissent from the majority’s discussion
of injunctive relief in Part II.D of its opinion.
III. Pre-Enactment Injunctive Relief
¶91 The majority rightly reaffirms that “issuing injunctive relief prior to the
enactment of a bill interferes with the legislative process and is unwarranted
absent ‘extraordinary circumstances.’” Maj. op. ¶ 19 n.6 (quoting Lewis v. Denver
City Waterworks Co.,
34 P. 993
, 995 (Colo. 1893)). The majority chooses not to reach
the issue of whether such extraordinary circumstances existed here because it
11
views the matter as beyond the questions presented.
Id.
Even so, the majority’s
footnote matters. Without that disclaimer, the court’s opinion affirming the
judgment of the district court could be misconstrued as condoning pre-enactment
injunctive relief. Now, that shouldn’t happen.
¶92 Still, I would reach this issue because the presence (or absence) of
extraordinary circumstances goes to the second question presented: “[w]hether
the [d]istrict [c]ourt correctly evaluated the requirements for injunctive relief to
direct the manner of the State Senate’s ‘reading’ of a pending bill.” When a bill is
“pending,” the requirements for injunctive relief exceed the criteria from
C.R.C.P. 65 and Rathke v. MacFarlane,
648 P.2d 648
(Colo. 1982).
¶93 In almost all cases, “the legislature cannot be . . . restrained from passing an
act, even though the constitution expressly forbids it.” Bledsoe, 810 P.2d at 208
(quoting Lewis, 34 P. at 994); see Polhill v. Buckley,
923 P.2d 119
, 121 (Colo. 1996)
(“Our case law embodies a strong tradition which holds that courts cannot
interfere with the ongoing legislative process except in extraordinary
circumstances.”). “In the enactment of [legislation] by the general assembly, . . .
each step must be taken as the constitution provides, yet while the measure is . . .
in process of legislation, the general assembly is the judge of whether the steps are
being so taken . . . .” Polhill, 923 P.2d at 122 (quoting Speer v. People,
122 P. 768
, 770
(Colo. 1912)).
12
¶94 In Bledsoe, we held that a district court hadn’t abused its discretion when it
dismissed a pre-enactment request to enjoin legislators from violating a
constitutional procedure. 810 P.2d at 204. We reasoned, “[T]he judiciary’s role in
large part is limited to measuring legislative enactments against the standard of the
constitution, and declaring them null and void if they are violative of the
constitution.” Id. at 210 (emphasis added). In contrast, a court can issue pre-
enactment declaratory relief against the General Assembly because that doesn’t
“present the same kind or degree of affirmative interference with legislative
activities.” Id. at 211; accord Grossman,
80 P.3d at 961
(“A request that the court
enjoin conduct by the legislature generally entails an improper intrusion into
legislative affairs, but a request for a declaratory judgment that an action is
unconstitutional may be addressed by the court.”).
¶95 So, the majority is correct that pre-enactment injunctive relief was
inappropriate here unless there were “extraordinary circumstances” warranting
that intrusion into the legislative sphere. Maj. op. ¶ 19 n.6 (quoting Lewis, 34 P. at
995). Two of the respondents were prime sponsors of HB 1172, and they argue
that post-enactment relief would not have vindicated their dual interests in the
constitutional viability of their legislation and the enforcement of the reading
requirement. See Polhill, 923 P.2d at 122 (“In an appropriate case, this court may
exercise its equitable powers where no adequate remedy is provided by the [post-
13
enactment review] process.”). At oral argument, however, respondents
volunteered that their goal was to “stall the majority’s consideration of other bills.”
Such political tactics cannot transmute this matter into one of the “extreme cases”
that justify a suspension of our usual prohibition against pre-enactment
injunctions. Lewis, 34 P. at 995.
¶96 Given the lack of extraordinary circumstances, the problem with the district
court’s injunctive relief is that it happened at all, not that it dictated how to comply
with the reading requirement.
IV. Conclusion
¶97 I respectfully dissent because Baker is not the law in Colorado and the
district court showed insufficient deference to the Senate. By reviewing the
Senate’s interpretation of the reading requirement de novo, the majority saps the
separation-of-powers doctrine of any practical force in this sensitive case.
I am authorized to state that JUSTICE MÁRQUEZ and JUSTICE HART
join in this dissent.
14 |
4,669,333 | 2021-03-18 23:02:30.04816+00 | null | https://www.cobar.org/Portals/COBAR/Repository/Job Board/New folder/2021COA34.pdf | The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 18, 2021
2021COA34
No. 17CA0315, People v. Tun — Constitutional Law —
Fourteenth Amendment — Equal Protection; Crimes — DUI —
Prior Convictions; Regulation of Vehicles and Traffic — Alcohol
and Drug Offenses — Penalties for Traffic Offenses Involving
Alcohol and Drugs
A division of the court of appeals considers whether a
defendant’s constitutional right to equal protection is violated when
he is convicted of a felony under the DUI statute, section
42-4-1301, C.R.S. 2020, and sentenced in accordance with the
provisions of section 42-4-1307(6.5), C.R.S. 2020. See U.S. Const.
amend. XIV; Colo. Const. art. II, § 25.
The division rejects the defendant’s argument that conviction
under section 42-4-1301 violates his right to equal protection
because section 42-4-1301 and section 42-4-1307(6.5) prohibit and
punish the same conduct as section 42-4-1307(6), but allow the
imposition of more serious penalties. It notes that section
42-4-1307(6) applies, “[e]xcept as provided in section
42-4-1301(1)(a), (1)(b), and (2)(a).” Moreover, when used as a basis
for felony charges, section 42-4-1301 requires a different minimum
number of convictions than section 42-4-1307(6). In addition,
section 42-4-1301 requires that prior qualifying convictions arise
from “separate and distinct criminal episodes” while section
42-4-1307(6) does not. Finally, section 42-4-1307(6) contains
qualifying prior offenses that are not contained in section
42-4-1301.
Nonetheless, pursuant Linnebur v. People, 2020 CO 79M, the
division reverses the defendant’s convictions for felony DUI and
felony DUI per se. The division also reverses the defendant’s
conviction for failure to display proof of insurance and affirms his
remaining convictions.
COLORADO COURT OF APPEALS 2021COA34
Court of Appeals No. 17CA0315
Arapahoe County District Court No. 15CR2977
Honorable Natalie T. Chase, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Pedro Reynauldo Tun,
Defendant-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE RICHMAN
Freyre and Grove, JJ., concur
Announced March 18, 2021
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Appellant, Pedro Reynauldo Tun, appeals a judgment of
conviction finding him guilty of felony driving under the influence
(DUI) and felony DUI per se, failing to display proof of insurance,
driving an unregistered vehicle, driving after revocation prohibited
(DARP), and driving under restraint (DUR). We previously issued an
opinion affirming all of Tun’s convictions except for failure to
display proof of insurance. People v. Tun, (Colo. App. No.
17CA0315, Mar. 12, 2020) (not published pursuant to C.A.R. 35(e)).
However, based on its decision in Linnebur v. People, 2020 CO 79M,
the supreme court vacated our opinion and remanded the matter
for reconsideration. Tun v. People, (Colo. No. 20SC322, Jan. 11,
2021) (unpublished order). We now reverse Tun’s convictions for
felony DUI and felony DUI per se based on Linnebur. We also
reverse his conviction for failing to display proof of insurance, affirm
his remaining convictions, and remand this case for further
proceedings consistent with this opinion.
I. Background
¶2 In October 2015, Tun was pulled over by Officer Jeffrey Olson
because there was no license plate or temporary permit on his car.
He admitted to Officer Olson that the car was not registered and
1
said that it belonged to his son. He did not produce a license or
proof of insurance when Officer Olson requested them.
¶3 Officer Olson noticed the smell of alcohol coming from Tun’s
car. He also observed that Tun had watery, bloodshot eyes, and his
movements were slower than those of a sober person. Tun
admitted that he had consumed two beers that day. As a result,
Officer Olson called for a DUI enforcement officer. When the officer
arrived, Tun admitted to consuming ten to fifteen beers throughout
the day, and he agreed to perform roadside sobriety maneuvers. He
did not perform them as a sober person would, and he was placed
under arrest. A blood alcohol test performed approximately one
and a half hours after Tun was stopped revealed that his blood
contained .26 grams of alcohol per 100 milliliters. In addition,
Tun’s driving record indicated that his license had been subject to
various restraints since 1999, and it had been revoked in 2013 due
to his status as a habitual traffic offender.
¶4 The People charged Tun with felony DUI and felony DUI per
se, a violation of section 42-4-1301(1)(a), (2)(a), C.R.S. 2020, failing
to present proof of insurance, a violation of section 42-4-1409(3),
C.R.S. 2020, driving an unregistered vehicle, a violation of section
2
42-3-121(1)(a), C.R.S. 2020, DARP, a violation of section
42-2-206(1)(a), C.R.S. 2020, and DUR, a violation of section
42-2-138(1)(d), C.R.S. 2020. He was convicted as charged.
II. Felony DUI and DUI Per Se
A. Prior Convictions
¶5 If a defendant is convicted of DUI or DUI per se after he has
three or more prior drug- or alcohol-related driving convictions, his
misdemeanor DUI or DUI per se convictions become felonies.
§ 42-4-1301(1)(a), (2)(a). The People alleged that Tun had three
prior DUI convictions. Before trial, Tun filed a motion to have his
alleged prior convictions tried to the jury. He argued that prior
convictions are elements of felony DUI and felony DUI per se and
therefore must be proved to a jury beyond a reasonable doubt.
¶6 The trial court denied the motion and, after the jury rendered
guilty verdicts on the misdemeanor DUI and DUI per se charges, his
alleged prior convictions were tried to the court. The court found
that Tun had the required number of prior convictions. His DUI
and DUI per se convictions were therefore elevated from
misdemeanors to felonies.
3
¶7 Tun first contends that the trial court erroneously denied his
motion to treat prior qualifying convictions as elements of the
charged felonies. He further contends that the trial court erred by
requiring proof by a preponderance of the evidence instead of proof
beyond a reasonable doubt. We agree.
¶8 As the supreme court made clear in Linnebur, ¶ 2, to obtain a
felony DUI conviction, the People must prove to a jury, beyond a
reasonable doubt, that (1) the defendant drove a “motor vehicle or
vehicle”; (2) while “under the influence of alcohol or one or more
drugs”; and (3) he had at least three prior drug- or alcohol-related
driving convictions. § 42-4-1301(1)(a). Similarly, to obtain a DUI
per se conviction, the jury must determine, beyond a reasonable
doubt, that (1) the defendant drove a “motor vehicle or vehicle”; (2)
when the defendant’s blood alcohol content was “0.08 or more at
the time of driving or within two hours after driving”; and (3) he had
at least three prior drug- or alcohol-related driving convictions.
§ 42-4-1301(2)(a); Linnebur, ¶ 2. The trial court therefore erred by
not permitting the jury to determine, beyond a reasonable doubt,
whether Tun had three prior DUI convictions.
4
¶9 Based on this error, we reverse Tun’s felony DUI and felony
DUI per se convictions. On remand, if the People do not elect to
retry Tun on charges of felony DUI and felony DUI per se, the trial
court shall re-enter convictions for misdemeanor DUI and
misdemeanor DUI per se and sentence him accordingly. Because
the Linnebur court declined to resolve whether double jeopardy
would bar retrial, we express no opinion on that issue. Linnebur,
¶ 32.
B. Equal Protection
¶ 10 Tun next contends, for the first time on appeal, that his felony
convictions under the DUI statute, § 42-4-1301, and sentencing
pursuant to section 42-4-1307(6.5), C.R.S. 2020, violate his right to
equal protection.
¶ 11 Tun argues that, under the applicable statutory scheme, if a
defendant has four or more DUI, driving while ability impaired
(DWAI), or DUI per se convictions, he has “two or more prior
convictions” under section 42-4-1307(6), but he also has “three or
more prior convictions” under section 42-4-1301, permitting the
People to bring felony charges if they choose to do so. Thus, at the
prosecutor’s discretion, a defendant with four or more qualifying
5
convictions may be punished as a felon under section
42-4-1307(6.5) or as a misdemeanor offender under section
42-4-1307(6), which imposes lighter penalties. He contends the
imposition of different penalties for the same conduct violates equal
protection. See U.S. Const. amend. XIV; Colo. Const. art. II, § 25.
¶ 12 In our original opinion in this case, we relied on People v.
Quezada-Caro,
2019 COA 155
, ¶ 39, to reject Tun’s equal protection
arguments. After our opinion was released, Quezada-Caro was
vacated by the supreme court on other grounds. People v.
Quezada-Caro, (Colo. No. 19SC962, Dec. 21, 2020) (unpublished
order). Nonetheless, our conclusion that the plain language of
these statutes undermines Tun’s argument has not changed. See
Colo. Med. Bd. v. Off. of Admin. Cts.,
2014 CO 51
, ¶ 9 (noting that a
court need not look further when giving effect to the plain and
ordinary meaning of unambiguous statutory provisions).
¶ 13 Section 42-4-1307(6) applies, “[e]xcept as provided in section
42-4-1301(1)(a), (1)(b), and (2)(a).” § 42-4-1307(6)(a). We read the
word “except” to mean that if there is a conflict between section
42-4-1307(6) and the identified subsections of section 42-4-1301,
the identified subsections are controlling.
6
¶ 14 Moreover, in several ways, the statutory scheme carefully
carves out exceptions to demarcate the various degrees of DUI
offenses so that one cannot be charged under multiple sections for
the same conduct.
¶ 15 First, as noted above, section 42-4-1307(6) permits
misdemeanor conviction and sentencing on the basis of two or more
prior qualifying convictions while section 42-4-1301 only permits
felony conviction and sentencing on the basis of three or more prior
qualifying convictions. Thus, the minimum number of convictions
required is different.
¶ 16 Second, section 42-4-1301 requires that the qualifying prior
convictions arise from “separate and distinct criminal episodes”
while section 42-4-1307(6) does not. Thus, for example, while a
defendant could receive an aggravated sentence under section
42-4-1307(6) for a single criminal episode involving a DUI and three
counts of vehicular homicide, such a defendant could not be
subject to felony DUI charges under section 42-4-1301(1)(a)
because there were not three separate and distinct criminal
episodes.
7
¶ 17 Third, section 42-4-1307(6) contains, as additional qualifying
prior offenses, aggravated driving with a revoked license1 and DUR.
But these prior offenses do not qualify as prior convictions for
felony DUI, DWAI, or DUI per se purposes. See § 42-4-1301(1)(a),
(1)(b), (2)(a).
¶ 18 For the foregoing reasons, we reject Tun’s contention that the
misdemeanor and felony DUI statutes punish identical conduct.
They are distinct. The felony DUI statute therefore does not violate
equal protection principles.
III. Sufficiency of the Evidence of Prior Convictions
¶ 19 Tun next contends that the trial court erred by concluding he
had three prior DUI convictions because (1) one of the prior
convictions was subject to collateral attack and (2) the People did
not sufficiently link Tun to the three prior convictions at issue.
Thus, Tun challenges the sufficiency of the evidence regarding his
prior convictions.
¶ 20 In our original opinion, we concluded that the trial court
properly applied a time bar to Tun’s attempted collateral attack. We
1 As the crime existed before August 5, 2015
8
further concluded that, under the preponderance of the evidence
standard, the People had presented sufficient evidence that Tun
had been convicted of three prior DUIs.
¶ 21 These conclusions may still be relevant to future proceedings
in the trial court should the People choose to retry Tun for felony
DUI and felony DUI per se based on the same evidence. However,
the People have not yet chosen to do so, and the trial court has not
yet ruled on the issues raised by such a choice. Under Linnebur,
before the People can try Tun for felony DUI and felony DUI per se,
they must first demonstrate that retrial is not barred by
constitutional double jeopardy limitations. Linnebur, ¶ 32. Only if
they prevail on this issue in the trial court can they attempt to
prove, beyond a reasonable doubt, that Tun has three prior DUI
convictions.
¶ 22 Because the trial court has not yet ruled on the double
jeopardy challenge that will surely be raised on retrial and the
People have not yet attempted to prove, beyond a reasonable doubt,
that Tun has at least three prior qualifying convictions, any opinion
on these issues would be advisory only. We must avoid issuing
such opinions. See People in Interest of Vivekanathan,
2013 COA 9
143M, ¶ 14. We therefore decline to address the sufficiency of the
evidence of prior convictions and the merits of any collateral attack
that Tun might choose to bring on retrial.
IV. Constructive Amendment
¶ 23 Tun next contends that his conviction for failure to display
proof of insurance should be reversed because while the
information charged him with failure to display proof of insurance
pursuant to section 42-4-1409(3), and the court read the proper
charge at the beginning of trial, the jury was ultimately instructed
on the charge that he operated a motor vehicle without insurance
under 42-4-1409(2). He alleges that this discrepancy was a
constructive amendment to the information.
¶ 24 As relevant here, subsection (3) of the statute is violated when,
upon request by a peace officer during a traffic investigation, a
motor vehicle operator fails to “present to the requesting officer
immediate evidence of a complying policy or certificate of self-
insurance in full force and effect as required by law.” However, the
instruction given to the jury stated:
The elements of the crime of Compulsory
Insurance are:
10
(1) That the defendant,
(2) in the State of Colorado, at or about the
date and place charged,
(3) operated a motor vehicle,
(4) on a public highway of this state,
(5) without a complying policy or certificate of
self-insurance in full force and effect as
required by law.
The jury was further instructed that “testimony that an operator of
a motor vehicle failed to immediately present evidence of a
complying policy or certificate of self-insurance . . . when requested
to do so by a peace officer, gives rise to a permissible inference that
the defendant did not have such a policy or certificate.” These
instructions are pertinent to subsection (2) not subsection (3) of
section 42-4-1409. See COLJI-Crim. 42:18, 42:19.SP (2019). They
address a failure to have insurance, not a failure to present proof of
insurance.
¶ 25 The verdict forms reflect that the jury convicted Tun of
operating a motor vehicle without insurance under subsection (2),
not a failure to present insurance upon request under subsection
11
(3). However, the judgment of conviction was entered under
subsection (3).
¶ 26 The People concede that a constructive amendment occurred.
We agree and accept the concession. “A constructive amendment is
a variance between the charge contained in the information and the
charge of which a defendant is convicted that ‘changes an essential
element of the charged offense and thereby alters the substance of
the [information].’” People v. Riley,
2015 COA 152
, ¶ 11 (alteration
in original) (quoting People v. Rodriguez,
914 P.2d 230
, 257 (Colo.
1996)). Here, the charge stated in the information required the
People to prove that Tun failed to present insurance when requested
to do so. However, the jury instruction given at trial removed that
element and added another, requiring the People to prove instead
that Tun operated an uninsured vehicle.
¶ 27 While the parties agree that the trial court erred, they disagree
on the standard of reversal applicable to a constructive amendment.
Tun contends that all constructive amendments are per se
reversible as structural error, while the People contend that the
plain error standard is applicable. We need not decide this issue
12
because we conclude that the error was plain and reverse the
judgment of conviction on this charge.2
¶ 28 To constitute plain error, an error must be so obvious and
substantial that it undermines the fundamental fairness of the trial
and casts serious doubt on the reliability of the judgment of
conviction. People v. Weinreich,
119 P.3d 1073
, 1078 (Colo. 2005).
Here, the challenged instruction’s departure from the crime charged
in the information is both obvious and substantial. Neither of the
elements altered by the amendment is a subset of the other, and
the proof required is materially different.
¶ 29 A driver may fail to present proof of insurance although he
actually has it.3 Conversely, he may drive while uninsured but,
unless requested to do so, he is under no obligation to present proof
2 In People v. Carter,
2021 COA 29
, ¶ 48, a division of this court
concluded that constructive amendments are subject to a plain
error, rather than a structural error, standard of reversal. We
decline to engage in this analysis because a more limited analysis
will suffice. See People v. Perez,
2020 COA 83
, ¶ 28 (noting that we
are not required to follow the decisions of other divisions of this
court).
3 The fact that a driver who fails to present proof of insurance is, in
fact, insured is a defense to this crime if the driver produces proof
that he was insured at the time. See § 42-4-1409(6), C.R.S. 2020.
13
of insurance to a peace officer who stops him. Consequently, he
may be convicted of driving while uninsured without proof that he
failed to present proof of insurance upon request. People v.
Martinez,
179 P.3d 23
, 25 (Colo. App. 2007). For this reason, we
conclude that subsection (3) is not simply a lesser included offense
of subsection (2), because proof of all the elements of subsection (2)
does not necessarily constitute proof of the elements of subsection
(3). See Riley, ¶ 16. Because Tun was required to defend against
an element that was not included in the original charge, and he did
not have notice he would be required to do so, he was prejudiced.
We conclude that the reliability of the judgment of conviction is in
serious doubt and determine that the error is plain.
¶ 30 We acknowledge the People’s argument that under People v.
Hoggard,
2017 COA 88
, aff’d on other grounds,
2020 CO 54
, no
reversal is required where the faulty instruction did not prejudice
the defendant. In this regard, the People assert that Tun was not
prejudiced because his attorney presented a defense to a subsection
(2) charge. However, we find Hoggard distinguishable because the
Hoggard division concluded that the variance at issue was not a
constructive amendment. It therefore analyzed the issue as a
14
simple instructional error, concluding that the manner in which the
element was altered did not affect the defense strategy or the proof
offered by the defendant. Id. at ¶ 34. Here, we conclude that the
error was a constructive amendment, triggering a different analysis
concerned with the lack of notice to Tun. Due to the constructive
amendment, Tun’s attorney unexpectedly had to rebut the inference
that Tun did not have insurance because he failed to present it, a
turn of events that triggers fairness concerns.4
4 In Carter, ¶¶ 31-32, 57, the division concluded that the defendant
was not prejudiced by an identical constructive amendment and,
further, that he was actually advantaged by it. The defendant’s
theory was that he was not the operator of the vehicle. Id. at ¶ 31.
He apparently chose this defense because bodycam footage
demonstrated that he failed to produce proof of insurance when
asked. Id. at ¶ 32. The division reasoned that the defendant’s
counsel welcomed the constructive amendment because the
defendant had a chance of acquittal under subsection (2), which
imposes liability only on vehicle operators, see § 42-4-1409(2), while
he had no chance of acquittal under subsection (3), which also
imposes liability based on ownership, see § 42-4-1409(3). There
was evidence that the defendant owned the vehicle. Carter, ¶ 31.
We find Carter distinguishable. Here, there was no bodycam
footage of the stop. Further, due to the constructive amendment,
Tun’s counsel had to argue in closing that the jury should not
presume that the vehicle was not insured because the car belonged
to Tun’s son. Without this amendment, Tun needn’t have made
this argument. He could have instead relied on the absence of
video evidence, arguing only that the People hadn’t met their
burden of proof.
15
¶ 31 We reverse Tun’s conviction for failure to present proof of
insurance. Because the evidence at trial would have been sufficient
to sustain a conviction for failure to present proof of insurance
upon request under subsection (3), Tun may constitutionally be
retried. Riley, ¶ 20. We remand this case for a new trial on this
charge.
V. Sufficiency of the Evidence of DUR and DARP
¶ 32 Tun next contends that the evidence was insufficient to
support his DUR and DARP convictions because the People failed to
prove the “knowledge” element of each offense beyond a reasonable
doubt. We disagree.
¶ 33 To prove DUR, the People were required to show that Tun
drove “with knowledge” that his license or driving privileges were
under restraint.5 § 42-2-138(1)(d)(I). The term “with knowledge” in
this statute means either (1) actual knowledge or (2) knowledge “of
circumstances sufficient to cause a reasonable person to be aware
that such person’s license or privilege to drive was under restraint.”
5 A restraint is “any denial, revocation, or suspension of a person’s
license or privilege to drive a motor vehicle in this state or another
state.” § 42-2-138(4)(b), C.R.S. 2020.
16
§ 42-2-138(4)(a). The second part of this definition has both an
objective and a subjective component, incorporating a reasonable
person standard and a requirement that the defendant is aware of
the specific circumstances from which knowledge may be inferred.
People v. Ellison,
14 P.3d 1034
, 1036-37 (Colo. 2000).
¶ 34 To prove DARP, the People were required to show that Tun
drove while his license was revoked based on a finding that he was
a habitual traffic offender, and that he did so “knowingly.”
§ 42-2-206. The term “knowingly” in this statute means that the
defendant was “aware . . . that such a circumstance exist[ed].”
§ 18-1-501(6), C.R.S. 2020. The relevant circumstance in this case
is the revocation of Tun’s license due to his habitual traffic offender
status. Griego v. People,
19 P.3d 1
, 6 (Colo. 2001).
¶ 35 The People presented several pieces of evidence related to
Tun’s knowledge of the status of his license. First, they presented
his driving record. It indicates that his license was revoked seven
times between 1999 and 2013 (with a notation each time that
notice was sent) and that it was never reinstated. Second, the
People presented a letter dated May 6, 2013, from the Division of
Motor Vehicles to Tun notifying him that his license was revoked
17
based on a finding that he is a habitual traffic offender. The letter
also notified Tun that his revocation would remain in effect until
May 5, 2018. Attached to the letter was a record from the
Department of Revenue entitled “Verification of Mailing of
Notices/Orders.” The record lists Tun’s name and address, the date
May 6, 2013, a handwritten checkmark next to Tun’s name, the
name of the mailroom employee responsible for mailing, and a
statement that “by checking off the name and initialing this
statement, the mail room verifies that these notices/orders were
deposited in the U.S. mail first class.”
¶ 36 Viewing this evidence in the light most favorable to the People,
as we must when reviewing the sufficiency of the evidence, we
conclude that it is sufficient to support a conclusion by a
reasonable person that Tun had knowledge as defined in the DUR
and DARP statutes. People v. Carrasco,
85 P.3d 580
, 582 (Colo.
App. 2003).
¶ 37 Tun’s driving record is relevant to whether he knew his license
was under restraint or revoked due to his status as a habitual
traffic offender. The record contains evidence that his license was
revoked multiple times over a period spanning nearly fifteen years,
18
notice was sent each time, and his license was never reinstated.
This evidence increased the strength of the inference that at some
point, Tun received and viewed a notice of revocation, and further,
that he was not under the impression that his license had been
reinstated. CRE 401 (evidence is relevant when it tends to make a
material fact more or less probable).
¶ 38 The sheer volume of Tun’s prior criminal driving convictions
makes it highly unlikely that he had no knowledge that his license
was revoked, he had been deemed a habitual traffic offender, and
his license was under restraint. Compare People v. Boulden,
2016 COA 109
, ¶¶ 15-17 (finding that a driving record that showed one
suspension seven months prior to the date of the offense, along
with verification that a notice of suspension was sent to the
defendant’s last known address, was not sufficient to prove
knowledge with respect to DAR), with People v. Espinoza,
195 P.3d 1122
(Colo. App. 2008) (relying in part on the defendant’s driving
record and his status as a habitual traffic offender to prove
knowledge under the DARP statute). It also reduces the likelihood
that Tun simply unwittingly discarded the notices. Ellison, 14 P.3d
at 1037 n.5 (noting that while a defendant may not have knowledge
19
of a restraint if he accidentally throws a notice away, this
hypothetical assumes that numerous traffic offenses alone would
not lead a reasonable person to conclude that his license was under
some type of restraint).
¶ 39 In addition, under sections 42-2-119(2) and 42-2-138(2)(a),
C.R.S. 2020, an official record like the May 6, 2013, letter showing
that a notice of a restraint was sent via first class mail to a
defendant at his last known address gives rise to a permissible
inference that the defendant received notice of the revocation. And
evidence of such notice may, depending on the circumstances,
support a finding that a defendant had knowledge as defined by the
DUR statute. COLJI-Crim. 42:04.SP cmt. 2; People v. Villa-Villa,
983 P.2d 181
, 182 (Colo. App. 1999) (citing section 42-2-119(2) as a
way of providing proof of notice in a criminal case). The jury was
given an instruction on the permissible inference raised by the
evidence in this case with respect to the DUR charge.
¶ 40 We therefore conclude that, in combination, the evidence was
sufficient to support Tun’s convictions for DUR and DARP.
20
VI. Merger
¶ 41 Tun’s final contention is that the trial court erred by failing to
merge his DUR and DARP convictions because DUR is a lesser
included offense of DARP, and his conviction on both counts
therefore violates his double jeopardy rights.
¶ 42 We review de novo whether a conviction violates a defendant’s
right to be free from double jeopardy. People v. Welborne,
2018 COA 127
, ¶ 7. However, because Tun’s trial counsel did not
preserve this issue, we will reverse only if plain error occurred. Id.;
see Hagos v. People,
2012 CO 63
, ¶ 14.
¶ 43 Pursuant to constitutional double jeopardy protections, a
defendant may not receive multiple punishments for the same
offense unless such punishments are legislatively authorized.
Hagos, ¶ 8. In Colorado, the General Assembly has determined that
a defendant may not be convicted of two different offenses if one
offense is a lesser included offense of the other. See
§ 18-1-408(1)(a), C.R.S. 2020. One offense is a lesser included
offense of the other if “the elements of the lesser offense are a
subset of the elements of the greater offense, such that the lesser
offense contains only elements that are also included in the
21
elements of the greater offense.” Reyna-Abarca v. People,
2017 CO 15
, ¶ 3. As a corollary to that rule, “an offense the commission of
which is necessarily established by establishing the elements of a
greater offense” is also a lesser included offense of that greater
offense. People v. Rock,
2017 CO 84
, ¶ 16.
¶ 44 In People v. Wambolt, a division of this court applied the tests
articulated in Reyna-Abarca and Rock to the question of whether
DUR is a lesser included offense of DARP, the very issue raised by
Tun here.
2018 COA 88
, ¶ 49. The division concluded that DUR is
a lesser included offense of DARP because one set of elements
included in DUR is also contained in DARP, and this fact is enough,
under the test defined in Rock, to draw that conclusion. Id. at ¶ 64.
We agree with the reasoning in Wambolt and similarly conclude that
DUR is a lesser included offense of DARP.
¶ 45 Nonetheless, the question remains whether the trial court’s
failure to draw this conclusion and merge the offenses was plain
error. We conclude that the error was not plain.
¶ 46 At the time that the trial court sentenced Tun, a division of
this court had drawn the opposite conclusion, holding that DUR is
not a lesser included offense of DARP. People v. Zubiate,
2013 COA 22
69, ¶ 52 (Zubiate I), aff’d,
2017 CO 17
(Zubiate II). In so holding,
the Zubiate I division declined to follow People v. Rodriguez,
849 P.2d 799
, 802 (Colo. App. 1992), a case in which another division of
this court concluded that DUR is a lesser included offense of DARP.
Zubiate I, ¶ 48. Thus, there was a split on this issue when the trial
court allowed Tun to be convicted and sentenced for both DUR and
DARP.
¶ 47 After Tun was sentenced, the supreme court affirmed the
holding in Zubiate I, concluding that DUR is not a lesser included
offense of DARP. Zubiate II, ¶ 21. However, the reasoning of
Zubiate II was later disapproved in Rock, ¶ 16 n.4. Rock’s
disapproval of the reasoning in Zubiate II called Zubiate II’s holding
regarding DUR and DARP into question, paving the way for the
analysis and contrary conclusion reached by the Wambolt division.
¶ 48 To find plain error, we must determine that an error was
obvious, meaning that it contravened a clear statutory command, a
well-settled legal principle, or controlling case law. Scott v. People,
2017 CO 16
, ¶ 16. Here, at the time that the trial court ruled, the
law was unsettled, and the trial court’s decision complied with the
most recent precedent from this court. Therefore, the error would
23
not have been obvious. Id. at ¶ 18 (concluding that the defendant
had not established plain error where the trial court’s ruling
complied with existing precedent when it was made); see also
Wambolt, ¶ 72 (relying on Scott, and declining to find plain error on
this issue because the law was unsettled when the trial court
ruled). For that reason, we conclude that no plain error occurred
and we decline to merge Tun’s convictions for DUR and DARP.
VII. Conclusion
¶ 49 We reverse Tun’s convictions for felony DUI, felony DUI per se,
and failing to display proof of insurance, affirm his remaining
convictions, and remand this case for further proceedings
consistent with this opinion.
JUDGE FREYRE and JUDGE GROVE concur.
24 |
4,669,334 | 2021-03-18 23:02:30.878766+00 | null | https://www.cobar.org/Portals/COBAR/Repository/Job Board/New folder/2021COA35.pdf | The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 18, 2021
2021COA35
No. 17CA1133, People v. Rainey — Constitutional Law — Sixth
Amendment — Right to Counsel
The defendant in this criminal case requested a continuance
so that he could continue to be represented by his appointed
counsel who could not appear on the scheduled trial date. The
district court, relying primarily on scheduling issues, denied the
request, and the defendant proceeded to trial with new, substitute
counsel. On appeal, he argued that the district court’s denial of his
continuance request violated his Sixth Amendment right to
continued representation by his counsel.
A division of the court of appeals holds that because indigent
defendants have a constitutional right to continued representation
by appointed counsel, the district court must apply the factors
enumerated in People v. Brown,
2014 CO 25
, when the defendant
seeks a continuance to enable him to continue the representation
by his appointed counsel. Because the district court did not apply
the Brown factors, the division reverses the judgment and remands
for further proceedings.
COLORADO COURT OF APPEALS 2021COA35
Court of Appeals No. 17CA1133
El Paso County District Court No. 16CR3477
Honorable Robin Chittum, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Robert James Rainey,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE HARRIS
Johnson and Vogt*, JJ., concur
Announced March 18, 2021
Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Brian Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Defendant, Robert James Rainey, appeals the judgment of
conviction entered on jury verdicts finding him guilty of second
degree kidnapping and criminal mischief.
¶2 On appeal, one claim is potentially dispositive. Rainey
contends that the district court violated his Sixth Amendment right
to continued representation when it denied a continuance on
grounds of judicial efficiency, thereby forcing him to proceed with a
different public defender. We conclude that the district court
applied the wrong legal standard in considering the motion to
continue, and we therefore reverse and remand for further findings.
I. Background
¶3 Rainey was charged with second degree kidnapping, a felony,
and several misdemeanor domestic violence offenses following an
altercation with the victim. The district court appointed counsel to
represent him.
¶4 Trial was originally scheduled to begin January 9, 2017, but
was thereafter delayed and continued multiple times for reasons not
attributable to the defense:
The court delayed trial to January 10 because a storm had
damaged the courthouse.
1
On January 10, the prosecution moved for a continuance
because the victim failed to appear. Over Rainey’s
objection, the court granted the continuance and
rescheduled trial for February 2.
The jury commissioner did not have enough jurors available
on February 2, so the court continued the case to February
23.
On February 23, the prosecution moved for a second
continuance because one of its witnesses was unavailable.
The court granted the continuance (again, over Rainey’s
objection) and reset trial for March 6, 2017, the day before
the speedy trial deadline.
¶5 At a pretrial hearing on March 3, Rainey, through his public
defender, Neil DeVoogd,1 requested a continuance. DeVoogd
explained that he would be out of town for the week of March 6, and
that when he had accepted that date, the parties had reached an
agreement and there was “not any [likelihood] that [the case] was
1DeVoogd had recently replaced Rainey’s initial public defender,
who, according to Rainey’s wife, had “called [Rainey] an asshole,
had called him stupid at some point,” and did not “communicate
back in a timely manner.”
2
going to be going to trial,” but the agreement “ended up not going
through.” He said that Rainey wanted to continue the
representation and was asserting his “right to have [DeVoogd] as his
attorney” at trial. DeVoogd told the court that Rainey would agree
to waive his right to a speedy trial.
¶6 The court recognized that every prior delay or continuance had
“either been attributable to the DA or the Court” and that “none of
them [we]re attributable to the Defense.” The trial judge rejected
any notion that the continuance request was a dilatory tactic and
indicated that she personally “felt terrible for Mr. Rainey in the
midst of all of this” and was “sympathetic” to the request.
¶7 Nonetheless, the trial judge denied the continuance, finding,
primarily, that it had been difficult to find a substitute judge to hear
the case and, due to the nature of the case, it would be difficult to
fit the trial back into her docket:
It would have been great to have [DeVoogd] do
it and that would have been a little more
comfortable, I think for Mr. Rainey. But what
the factual [sic] comes down to is that this isn’t
a [complicated] case. It’s not a case that
involved anything technical. It’s just straight
forward witnesses and a victim who doesn’t
want to cooperate.
3
....
If I have to reset this case, it’s getting reset [in]
July, and then even then it’s not a high
priority case. Every week I have sex assault on
a child, I have homicides set, I have [serious]
assault cases set, crimes of violence set. There
is a darn good chance that if we continue this,
he gets bumped again. And I can’t do that. I
just can’t do that for the sake of this case. He
is getting his attorney of choice. He’s getting
the Public Defender and a fine one too. So, I
understand where you’re coming from, record
so noted. But I’m gonna deny the request for a
continuance.
¶8 Accordingly, in place of DeVoogd, two other public defenders
from the same office represented Rainey at trial.
II. Sixth Amendment Right to Counsel
¶9 Rainey contends that the district court’s denial of his request
for a continuance violated his constitutional right to continued
representation by DeVoogd, his counsel of choice.
A. Standard of Review
¶ 10 We review the district court’s denial of a continuance motion
for an abuse of discretion. People v. Brown,
2014 CO 25
, ¶ 19. The
court’s “failure to understand the . . . criteria upon which [its]
discretion is to be exercised can amount to an abuse of that
discretion.” Pierson v. People,
2012 CO 47
, ¶ 21. And the court
4
necessarily abuses its discretion if it bases its ruling on an
erroneous view of the law. People v. Wadle,
97 P.3d 932
, 936 (Colo.
2004). Whether the court applied the correct legal standard is a
question of law we review de novo. Ronquillo v. People,
2017 CO 99
,
¶ 13.
B. Analysis
¶ 11 The Sixth Amendment guarantees a criminal defendant “the
Assistance of Counsel for his defence.” U.S. Const. amend. VI; see
also Colo. Const. art. II, § 16. That guarantee has been interpreted
to include, among other things, the right to appointed counsel for
indigent defendants, Gideon v. Wainwright,
372 U.S. 335
, 345
(1963), and the right to “select and be represented by one’s
preferred attorney” for defendants of means, Wheat v. United States,
486 U.S. 153
, 159 (1988).
¶ 12 The People argue that because Rainey, as an indigent
defendant, had no constitutional right to choose his lawyer, he also
had no right to continued representation by his appointed lawyer.
That argument cannot be squared with our supreme court’s well-
settled precedent.
5
¶ 13 To be sure, an indigent defendant does not have a right to
select his appointed counsel. Ronquillo, ¶ 25 (“[A] defendant
requesting a free lawyer can’t choose which one he’s given.” (citing
United States v. Gonzalez-Lopez,
548 U.S. 140
, 151 (2006))). But
“[t]he right to continued representation by counsel of choice [is
distinct] from an asserted right to have particular counsel of choice
appointed.” People v. Harlan,
54 P.3d 871
, 878 (Colo. 2002).
“[O]nce counsel is appointed, the attorney-client relationship is no
less inviolable than if the counsel had been retained by the
defendant.” People v. Shari,
204 P.3d 453
, 460 (Colo. 2009)
(quoting Harlan, 54 P.3d at 878). So, “[w]hile there is no Sixth
Amendment right for an indigent defendant to choose his appointed
counsel, that defendant is ‘entitled to continued and effective
representation’” by court-appointed counsel of choice “in the
absence of a demonstrable basis in fact and law to terminate that
appointment.” Harlan, 54 P.3d at 878 (citation omitted); accord
People v. Nozolino,
2013 CO 19
, ¶ 17.
¶ 14 The People’s argument, which conflates the right to select
counsel with the right to continued representation, was expressly
rejected by the supreme court in Harlan. In that case, after the
6
defendant was convicted at trial and while two postconviction
motions were pending, the district court disqualified appointed
counsel based on an alleged conflict of interest. Harlan, 54 P.3d at
876. On appeal, the prosecution contended that the court’s interest
in avoiding a potential conflict necessarily outweighed any interest
the defendant had in keeping his appointed counsel, noting that an
indigent defendant has no right to counsel of his choice. Id. at 878.
The court deemed that contention a non sequitur:
[T]he People’s contention that indigent
defendants are not entitled to choose court-
appointed counsel is irrelevant to the issue
before us. . . . As noted above, an indigent
defendant has a presumptive right to
continued representation by court-appointed
counsel absent a factual and legal basis to
terminate that appointment. Because the
issue presented in this case is whether Harlan
may continue to be represented by his current
counsel, and not whether he may choose his
counsel, this argument by the People, and the
case law cited to support the argument, is
inapposite.
Id. (citation omitted); see also Nozolino, ¶ 17; Shari, 204 P.3d at
460; Lane v. State,
80 So. 3d 280
, 296-99 (Ala. Crim. App. 2010)
(explaining that the right to continued representation applies
equally to indigent defendants and collecting state and federal cases
7
applying the rule); State v. McKinley,
860 N.W.2d 874
, 879-80 (Iowa
2015) (adopting Harlan’s view and collecting cases).
¶ 15 In light of this case law, we reject the People’s position that if a
defendant does not pay for his lawyer, he has no grounds to object
to his lawyer’s replacement as long as the replacement lawyer
handles the case competently. See Lane,
80 So. 3d at 296
. “To
allow trial courts to remove an indigent defendant’s court-appointed
counsel with greater ease than a non-indigent defendant’s retained
counsel would stratify attorney-client relationships based on
defendants’ economic backgrounds.” Weaver v. State,
894 So. 2d 178
, 189 (Fla. 2004).
¶ 16 And the right to continued representation means that an
indigent defendant has a right to proceed with his specific
appointed lawyer, not just any appointed lawyer from the public
defender’s office.
¶ 17 We have recognized that non-indigent defendants have this
right. In People v. Stidham,
2014 COA 115
, ¶ 10, a division of this
court held that a defendant has a Sixth Amendment right to
proceed with his specific lawyer, and that the district court erred by
denying a motion to continue and thereby requiring the defendant
8
to proceed with another lawyer from the same firm. See also
Gonzales v. State,
970 A.2d 908
, 920 (Md. 2009) (trial court erred
by denying the defendant’s request to continue with his own lawyer
and instead requiring him to choose between proceeding to trial
with a different lawyer from the same firm or representing himself).
¶ 18 If, as Harlan says, the attorney-client relationship between an
indigent defendant and his appointed counsel is no less inviolable
than the relationship between a non-indigent defendant and his
retained counsel, then the Sixth Amendment limits the district
court’s power to replace a defendant’s appointed lawyer with
another from the same firm or organization.2 See Stearnes v.
2 People v. Coria,
937 P.2d 386
(Colo. 1997), does not affect our
conclusion. In that case, after noting that an indigent defendant
does not have “an absolute right to demand a particular attorney,”
the supreme court stated that “[t]he substitution of one public
defender with another does not violate the Sixth Amendment right
to counsel, absent evidence of prejudice.” Id. at 389. The question
on appeal, though, was whether a defendant has a right to be
represented by a law student intern. Id. at 387, 388. The supreme
court never purported to address whether an indigent defendant
has a right to continued representation by his appointed counsel.
That precise issue was resolved five years later in People v. Harlan,
54 P.3d 871
, 878 (Colo. 2002), which did not mention Coria.
Because the propriety of substituting appointed counsel over a
defendant’s Sixth Amendment-based objection was outside the
scope of the issue decided by the Coria court, the court’s statement
9
Clinton,
780 S.W.2d 216
, 223 (Tex. Crim. App. 1989) (“[T]he power
of the trial court to appoint counsel to represent indigent
defendants does not carry with it the concomitant power to remove
counsel at [its] discretionary whim.”); State v. Huskey,
82 S.W.3d 297
, 305 (Tenn. Crim. App. 2002) (“[A]ny meaningful distinction
between indigent and non-indigent defendants’ right to
representation by counsel ends once a valid appointment of counsel
has been made.”). To the client — whether indigent or wealthy —
“[a]ttorneys are not fungible, as are eggs, apples and oranges.”
United States v. Laura,
607 F.2d 52
, 56 (3d Cir. 1979). Once
counsel has been appointed, and the defendant has reposed his
trust and confidence in the attorney assigned to represent him, the
district court may not “rend that relationship by dismissing the
is “mere dictum which is not binding on us.” McCallum Fam. L.L.C.
v. Winger,
221 P.3d 69
, 73 (Colo. App. 2009).
The Coria court’s statement was taken from People v.
Gardenhire,
903 P.2d 1165
(Colo. App. 1995), in which a division of
this court held that, absent some showing of prejudice, “the
substitution of one public defender with another does not constitute
a violation of defendant’s Sixth Amendment right to effective
assistance of counsel.”
Id. at 1168
(emphasis added). That narrow
proposition is unrelated to the issue in this case. And to the extent
a broader rule was intended, we decline to adopt it. See Chavez v.
Chavez,
2020 COA 70
, ¶ 13.
10
originally appointed attorney and then thrusting unfamiliar and
unwelcome counsel upon the defendant.” McKinnon v. State,
526 P.2d 18
, 22-23 (Alaska 1974); see also English v. State,
259 A.2d 822
, 826 (Md. Ct. Spec. App. 1969) (“[O]nce counsel has been
chosen, whether by the court or the accused, the accused is entitled
to the assistance of that counsel at trial.”) (emphasis added).
¶ 19 The right to counsel of choice, including the right to continued
representation, is not absolute. See Rodriguez v. Dist. Ct.,
719 P.2d 699
, 706 (Colo. 1986). But, as Harlan recognizes, there is “a
presumption in favor of a defendant’s choice of counsel” that
“extends to indigent defendants: A defendant’s desire for continued
representation by a court-appointed public defender is ‘entitled to
great weight.’” 54 P.3d at 878 (quoting Rodriguez, 719 P.2d at 707);
accord Nozolino, ¶ 17. Only when that presumption is overcome
may a court disregard a defendant’s choice. See Brown, ¶ 21
(refusing to allow the defendant to proceed with his counsel of
choice “is an ‘extreme remedy’ that should not be used absent a
showing of prejudice”) (citation omitted); Harlan, 54 P.3d at 877.
For instance, if the defendant’s choice of counsel has a conflict of
interest, the presumption may be outweighed by the public’s
11
interest in maintaining the integrity of the judicial process and the
defendant’s Sixth Amendment right to conflict-free counsel. See
Nozolino, ¶ 16; Harlan, 54 P.3d at 877. Likewise, if counsel of
choice is unable to appear without a continuance, some
combination of interests including prejudice to the prosecution and
the victim’s rights may overcome the presumption. Brown, ¶ 24.
¶ 20 In determining whether competing interests overcome the
presumption, the court “must balance the defendant’s right to
counsel of choice against the public’s interest in both the ‘efficient
administration of justice’ and maintaining the integrity of the
judicial process.” Id. at ¶ 22 (quoting Harlan, 54 P.3d at 877). As
noted, when balancing those interests, the court must afford “great
weight” to the defendant’s choice. Nozolino, ¶ 17 (citing Harlan, 54
P.3d at 878); accord Brown, ¶¶ 16, 21.
¶ 21 The People argue that even if, in some circumstances, the
court should consider the defendant’s “desire” to continue with
appointed counsel, no such deference was warranted here.
DeVoogd had no longstanding or “special” relationship with Rainey,
they say, and no substantial history with the case; thus, the court
12
had no obligation to cater to Rainey’s “preference” to keep his
lawyer.
¶ 22 But the argument arises from the faulty premise that Rainey’s
interest in continued representation by his counsel of choice
amounts to no more than a mere “desire” or “preference,” with no
constitutional dimension. The premise is irreconcilable with Harlan
and Nozolino. Contrary to the People’s assertion, an indigent
defendant’s right to continued representation is not based on the
district court’s assessment of the strength or longevity of a
particular attorney-client relationship, but on the recognition that
“respect and deference must be accorded to a defendant’s intelligent
and informed choice of counsel under our justice system.”
Nozolino, ¶ 17; see also Brown, ¶¶ 7, 11, 28 (remanding to consider
whether continuance should have been granted where retained
counsel entered his appearance twelve days before trial).
¶ 23 Accordingly, though the decision whether to grant or deny a
continuance ultimately falls within the sound discretion of the
district court, where constitutional rights are concerned, the court
must consider and weigh additional factors to enable our review of
whether it properly exercised its discretion. See Brown, ¶¶ 19-24;
13
see also People v. Travis,
2019 CO 15
, ¶ 12 (“[W]hen the Sixth
Amendment right to counsel of choice is at issue,” a court ruling on
a motion for a continuance “must demonstrate that it weighed the
full range of factors that might affect its exercise of discretion.”).
¶ 24 When ruling on a request for a continuance to allow
representation by counsel of choice, Brown directs the district court
“to consider and make a record of the impact” of eleven factors:
1. the defendant’s actions surrounding the
request and apparent motive for making the
request;
2. the availability of chosen counsel;
3. the length of continuance necessary to
accommodate chosen counsel;
4. the potential prejudice of a delay to the
prosecution beyond mere inconvenience;
5. the inconvenience to witnesses;
6. the age of the case, both in the judicial
system and from the date of the offense;
7. the number of continuances already granted
in the case;
8. the timing of the request to continue;
9. the impact of the continuance on the court’s
docket;
14
10. the victim’s position, if the victims’ rights
act applies; and
11. any other case-specific factors
necessitating or weighing against further
delay.
Brown, ¶ 24.
¶ 25 Though Brown involved a request for a continuance to change
counsel, see id. at ¶¶ 7-9, we conclude that the same factors should
guide the district court’s discretion when the defendant seeks a
continuance to continue with his counsel. In both situations, the
defendant’s Sixth Amendment right to counsel of choice is
implicated, and therefore the same interests must be balanced.
¶ 26 Indeed, the division in Stidham, ¶ 17, applied the Brown
factors where the defendant sought a continuance to allow
continued representation by his retained lawyer. Because the right
to continued representation applies equally to indigent defendants,
we hold that the district court was required to weigh the Brown
factors before deciding whether to grant or deny a continuance
necessary for DeVoogd’s continued representation of Rainey at
15
trial.3 See Harlan, 54 P.3d at 878; see also Lane,
80 So. 3d at 295
(“With respect to continued representation, however, there is no
distinction between indigent defendants and nonindigent
defendants.”).
¶ 27 It is undisputed that the district court did not consider the
Brown factors on the record. What is more, it mistakenly concluded
that Rainey was still “getting his attorney of choice” — i.e., any
lawyer employed by “the Public Defender.” Cf. Nozolino, ¶ 20;
Stidham, ¶¶ 14-17. And rather than affording “great weight” to
Rainey’s choice to continue the representation, Harlan, 54 P.3d at
878, the court suggested only that Rainey “would have been a little
more comfortable” with DeVoogd as his trial counsel.
¶ 28 As a result, we must remand for the district court to make
findings on the record as to each applicable Brown factor and apply
3 We reject Rainey’s argument, relying on People v. Stidham,
2014 COA 115
, that when the right to continued representation is at
issue, as opposed to the right to select counsel of choice, no
balancing test applies, and the district court must simply grant
every request for a continuance. The Stidham division’s analysis in
this regard, see
id.
at ¶ 14 & n.1, applied only to a situation where
a defendant’s chosen counsel fails to appear, through no fault of,
and without notice to, the defendant.
16
the correct legal standard. See, e.g., Brown, ¶ 29 (remanding for
court to make additional findings and apply the correct standard).
III. Conclusion and Remand Order
¶ 29 The judgment is reversed, and the case is remanded for
further proceedings. On remand, the district court must make
findings on the record as to each applicable Brown factor (and state
on the record why the remaining factors, if any, do not apply). If
the court, after considering those factors and affording great weight
to Rainey’s choice to continue DeVoogd’s representation, concludes
that the presumption of continued representation has been
overcome, it may reinstate the judgment of conviction, from which
Rainey may separately appeal.4 Otherwise, Rainey is entitled to a
new trial. See People v. Cardenas, 2015 COA 94M, ¶ 19 (violation of
a defendant’s right to counsel of choice is structural error).
JUDGE JOHNSON and JUDGE VOGT concur.
4 In light of our disposition, we decline to address Rainey’s
additional contentions. If, after remand, the judgment of conviction
is reinstated and Rainey appeals, he may re-raise his other claims
at that time.
17 |
4,669,335 | 2021-03-18 23:02:31.78723+00 | null | https://www.cobar.org/Portals/COBAR/Repository/Job Board/New folder/2021COA36.pdf | The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 18, 2021
2021COA36
No. 19CA1798, CO2 Committee v. Montezuma County — Energy
and Environment — Oil and Gas; Taxation — Property Tax —
Valuation of Oil and Gas Leaseholds and Lands — Valuation for
Assessment; Jurisdiction of Courts — Standing
In this oil and gas leasehold tax case, a division of the court of
appeals considers whether a nonoperating fractional interest owner
in an oil and gas unit, who pays real property taxes on its leasehold
interest, has standing to claim that its due process rights were
violated when it did not receive individual notice of or an
opportunity to challenge a retroactive assessment and increased tax
liability. The division concludes, as a matter of first impression,
that a nonoperating fractional interest owner who has been denied
the panoply of rights afforded a taxpayer under the governing
statutes and guidelines — including to receive notice of and to
protest a retroactive assessment or to seek an abatement of a
retroactively increased tax — has standing to claim a violation of
those rights. The division reverses the district court’s order
dismissing the complaint for lack of standing.
COLORADO COURT OF APPEALS 2021COA36
Court of Appeals No. 19CA1798
Montezuma County District Court No. 18CV30100
Honorable Todd Jay Plewe, Judge
CO2 Committee, Inc.,
Plaintiff-Appellant,
v.
Montezuma County, Colorado; Montezuma County Board of County
Commissioners; Montezuma County Board of Equalization; Montezuma County
Assessor; and Montezuma County Treasurer,
Defendants-Appellees.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division II
Opinion by JUDGE BROWN
Román and Welling, JJ., concur
Announced March 18, 2021
Cogswell Law Offices, John M. Cogswell, Buena Vista, Colorado, for Plaintiff-
Appellant
Dufford, Waldeck, Milburn & Krohn, L.L.P., Nathan A. Keever, Jon T. Burtard,
Grand Junction, Colorado, for Defendants-Appellees
¶1 This oil and gas leasehold tax case requires us to determine
whether a nonoperating fractional interest owner in an oil and gas
unit who pays real property taxes on its leasehold interest has
standing to claim that its due process rights were violated when it
did not receive individual notice of or an opportunity to challenge a
retroactive assessment and increased tax. We conclude, as a
matter of first impression, that a nonoperating fractional interest
owner who has been denied the panoply of rights afforded a
taxpayer under the governing statutes and guidelines — including
the rights to receive notice of and to protest a retroactive
assessment or to seek an abatement of a retroactively increased tax
— has standing to claim a violation of those rights.
¶2 The plaintiff in this case, CO2 Committee, Inc. (CO2), is a
nonprofit corporation whose members include nonoperating
fractional interest owners in the McElmo Dome Unit (the Unit) who
pay real property taxes to Montezuma County.1 Following an audit,
1 Based on the record before us, the precise composition of CO2’s
membership is unclear. Because the district court did not take
evidence or make jurisdictional findings, however, we accept as true
the allegations in the complaint. Jones v. Samora,
2016 COA 191
,
¶ 21 (“When deciding whether a party has standing, ‘all averments
1
Montezuma County2 retroactively increased the assessed value of
the taxable real property in the Unit for tax year 2008, which
resulted in an increased tax liability for the Unit.
¶3 On behalf of its members, CO2 filed a complaint alleging that
Montezuma County violated its members’ due process rights by
failing to provide each member individual notice of and an
opportunity to challenge the retroactive assessment. The district
court dismissed the complaint for lack of standing.
¶4 We conclude that CO2’s members include nonoperating
fractional interest owners who are taxpayers with standing to
pursue the claims asserted in the complaint. Accordingly, we
reverse the district court’s order dismissing the complaint and
remand the case for further proceedings.
of material fact in a complaint must be accepted as true.’” (quoting
State Bd. for Cmty. Colls. & Occupational Educ. v. Olson,
687 P.2d 429
, 434 (Colo. 1984))); cf. Medina v. State,
35 P.3d 443
, 452 (Colo.
2001) (explaining that a trial court is authorized to conduct a
hearing and to resolve disputed jurisdictional facts).
2 Defendants are Montezuma County, Montezuma County Board of
County Commissioners, Montezuma County Board of Equalization,
Montezuma County Assessor, and Montezuma County Treasurer
(collectively, Montezuma County).
2
I. Background
¶5 An estate in minerals such as oil and gas is a form of real
property. § 24-65.5-101, C.R.S. 2020; § 39-1-102(14), C.R.S. 2020.
When the owner of a mineral estate leases the right to extract oil
and gas from the land,
the lease may create various interests, which
generally take the form of either a working
interest (the oil and gas company’s right to
extract the minerals and develop them for
profit) or a royalty interest (the estate owner’s
right to receive a share of the production or a
share of the value of the proceeds of
production).
Kinder Morgan CO2 Co., L.P. v. Montezuma Cnty. Bd. of Comm’rs,
2017 CO 72
, ¶ 4 (KM II) (citing 1 Patrick H. Martin & Bruce M.
Kramer, Williams & Meyers, Oil and Gas Law §§ 201-216 (2014
ed.)).
¶6 In the oil and gas context, a “unit” is “a consolidation of
working interests that extract resources from a single geological
reservoir. Units are created for the purpose of efficiently extracting
resources from the reservoir through coordinated engineering and
operation, often by a single operator.” KM II, ¶ 12 n.4 (citing 6
Martin & Kramer, § 901); see also § 39-10-106(5), C.R.S. 2020
3
(“‘[U]nit’ means any single oil, gas, or other hydrocarbon well or field
which has multiple ownership, or any combination of oil, gas, or
other hydrocarbon wells, fields, and properties consolidated into a
single operation, whether by a formal agreement or
otherwise . . . .”). The operator is the “person responsible for the
day-to-day operation of a well by reason of contract, lease, or
operating agreement.” 3 Div. of Prop. Tax’n, Dep’t of Loc. Affs.,
Assessor’s Reference Library, at 6.25 (rev. Jan. 2008) (ARL).3
¶7 The Unit at issue here is a consolidation of working interests
in a large deposit of pure carbon dioxide in Montezuma and Dolores
Counties. KM II, ¶ 12 n.4 (citing Colorado Oil and Gas
Conservation Commission Order No. 389-1 (Nov. 17, 1982)).
Although several other individuals and entities own various working
3 In this opinion, we refer to Volume 2 of the ARL, the
“Administrative and Assessment Procedures Manual,” revised
December 2008, and Volume 3 of the ARL, the “Land Valuation
Manual,” revised January 2008. Volume 2 “is an aid to assessors
in valuing and assessing taxable property.” 2 ARL Preface, at ii.
Volume 3 “provide[s] a reference source for appraisal and
assessment policies and procedures for the valuation of land
according to the Colorado Constitution and statutes.” 3 ARL
Preface, at ii. Current and historical versions may be found online:
Colo. Dep’t of Loc. Affs., Assessors’ Reference Library Manuals,
https://perma.cc/AVY8-5ME7.
4
interests and royalty interests in the Unit, Kinder Morgan CO2
Company, L.P. (Kinder Morgan) is the largest working interest
owner and the sole operator of the Unit. Kinder Morgan owns a
44% fractional interest in the Unit. CO2’s members are royalty
owners, overriding royalty owners, and nonoperating working
interest owners collectively owning an 11.224% fractional interest in
the Unit.
¶8 As the Unit operator, Kinder Morgan extracts and compresses
the carbon dioxide and then transports it by pipeline to Texas
where it is sold for use in oil and gas operations. See id. at ¶¶ 12-
13. Kinder Morgan also manages the Unit’s development by paying
for the facilities and equipment and supplying labor to produce the
carbon dioxide, and then billing the other working interest owners
for its expenses in operating the Unit and arranging for
transportation of the carbon dioxide to the point of sale. Id. at ¶ 13.
¶9 As the Unit operator, Kinder Morgan also files an annual
property tax statement for and pays property taxes on behalf of all
interest owners in the Unit. Id.; see also § 39-7-101(1), C.R.S.
2020; § 39-10-106.
5
¶ 10 Oil and gas leaseholds are taxed as real property. KM II, ¶ 4;
see also Colo. Const. art. X, § 3(1)(b); § 39-7-102, C.R.S. 2020.
“Unlike most property interests, however, the value of an oil and
gas leasehold interest comes not from the physical space or land
the leasehold occupies, but rather, from the quantity and value of
oil and gas underground.” KM II, ¶ 4. That value, in turn, depends
on the “selling price of the gas or oil ‘at the wellhead,’” id. at ¶ 7; see
also §§ 39-7-101(1), -102, a term we discuss in greater detail below
in Part II.C.2.b.
¶ 11 In 2009, following an audit of the annual property tax
statement Kinder Morgan filed for the Unit for tax year 2008,
Montezuma County determined that Kinder Morgan had
underreported the selling price at the wellhead by deducting costs
that it was not allowed to deduct. KM II, ¶¶ 15-16. Consequently,
Montezuma County retroactively increased its valuation of the
leaseholds in the Unit by approximately $57 million, increasing the
Unit’s property tax liability by over $2 million. Id. at ¶ 16.
¶ 12 Kinder Morgan paid the increased taxes under protest,
petitioned for and was denied an abatement, and unsuccessfully
appealed the retroactive assessment all the way to the Colorado
6
Supreme Court. Id. at ¶¶ 17, 46; see Kinder Morgan CO2 Co., L.P. v.
Montezuma Cnty. Bd. of Comm’rs,
2015 COA 72
, ¶ 44 (KM I), aff’d,
KM II. In KM II, the supreme court concluded that “the statutory
scheme governing property taxation of oil and gas leaseholds and
lands authorizes the retroactive assessment of taxes when an
operator has underreported the selling price of oil or gas,” KM II,
¶ 40, and affirmed the Board of Assessment Appeals’ conclusion
that Kinder Morgan had underreported the selling price at the
wellhead, id. at ¶ 46.
¶ 13 Ultimately, Kinder Morgan billed the nonoperating fractional
interest owners, including CO2’s members, for their proportionate
shares of the increased taxes. CO2 alleged in its complaint that
Montezuma County has since retroactively increased its valuation
of the leaseholds in the Unit and retroactively assessed taxes
against the Unit for tax years subsequent to 2008. Kinder Morgan
has paid the increased taxes and billed the fractional interest
owners, including CO2’s members, for their proportionate shares.
CO2 alleged that its members have collectively been assessed
retroactive taxes estimated at $500,000 per year.
7
¶ 14 During the audit of the 2008 tax statement, the retroactive
assessment, the petition for abatement, and the subsequent
appeals, Montezuma County communicated only with Kinder
Morgan as the operator of the Unit. It issued special notices of
valuation only to Kinder Morgan. It did not provide individual
notice to any other fractional interest owner and no other fractional
interest owner participated in the proceedings resulting in the
increased tax liability.
¶ 15 According to its complaint, after CO2 received notice from
Kinder Morgan that Kinder Morgan had paid increased taxes for the
Unit, it attempted to challenge the retroactive assessment on behalf
of its members. In substance, it argued that its members were
entitled to deduct the costs that Kinder Morgan was disallowed, so
its members did not underreport their selling price at the wellhead.
As a result, CO2 argued, Montezuma County improperly increased
the taxable value of their interests by retroactively assessing the
entire Unit without making individual proportionality computations
for each fractional interest owner.
¶ 16 CO2 filed an objection with the Montezuma County assessor
pursuant to section 39-5-122, C.R.S. 2020, claiming that
8
Montezuma County wrongfully determined that CO2’s members had
underreported their selling price at the wellhead beginning with the
2008 tax year. CO2 alleged that Montezuma County responded,
claiming it was unable to establish that CO2’s members should be
treated differently than Kinder Morgan for purposes of computing
the selling price at the wellhead, and that separate special notices
of valuation have never been provided to CO2’s members and were
not required.
¶ 17 CO2 then appealed to the board of equalization pursuant to
section 39-8-106, C.R.S. 2020, and filed a petition for abatement
with the board of county commissioners pursuant to section 39-10-
114, C.R.S. 2020. CO2 alleged that Montezuma County responded
as follows: “The Montezuma County Assessor’s office has not sent
Notices of Value [to CO2]. As [CO2] is not identified as a
Montezuma County taxpayer, we are not able to provide a hearing
at the [b]oard of [e]qualization. Thank you.”
¶ 18 Consequently, CO2 commenced the underlying district court
litigation against Montezuma County, asserting claims for
(1) violation of its members’ civil rights, under
42 U.S.C. § 1983
;
and (2) an injunction requiring Montezuma County to calculate and
9
refund its members’ alleged overpayment of taxes and precluding
Montezuma County from levying retroactive taxes against its
members without delivering actual notice to each member. The
thrust of CO2’s complaint was that Montezuma County had denied
its members due process of law by retroactively increasing their
taxes without providing them individual notice of and an
opportunity to challenge the retroactive assessment or the
opportunity to seek a tax abatement.
¶ 19 Montezuma County filed a motion to dismiss, arguing, among
other things, that CO2 was not the real party in interest and that it
lacked standing.4 The district court granted the motion.
¶ 20 On appeal, CO2 contends that the district court erred by
(1) dismissing its complaint for lack of standing; (2) concluding that
it was not the real party in interest; and (3) denying its post-
dismissal motion to amend the complaint. Because we conclude
that CO2’s members have standing to bring the asserted claims, we
4Montezuma County also argued that the complaint should be
dismissed on the basis of claim and issue preclusion because
Kinder Morgan made the same substantive argument when it
challenged the retroactive assessment as CO2 makes now. The
district court denied the motion to dismiss on these bases.
10
reverse the court’s order dismissing the complaint and remand for
further proceedings.
II. Standing
¶ 21 CO2 contends that the district court erred in dismissing its
complaint for lack of standing by concluding that (1) CO2’s
members were not entitled to due process related to the retroactive
assessment proceedings; and (2) CO2’s members “were not real
parties in interest with standing” and, thus, CO2 was “not a real
party in interest [with] standing” to maintain this lawsuit against
Montezuma County. We agree.
A. Standard of Review and Applicable Law
¶ 22 For a court to have jurisdiction over a dispute, the plaintiff
must have standing to bring the case. Ainscough v. Owens,
90 P.3d 851
, 855 (Colo. 2004). Standing is a threshold issue that must be
satisfied for a court to decide a case on the merits. Barber v. Ritter,
196 P.3d 238
, 245 (Colo. 2008).
¶ 23 Whether a party has standing is a question of law that we
review de novo.
Id.
And when deciding whether a party has
standing, we must accept as true all averments of material fact in a
complaint. Jones v. Samora,
2016 COA 191
, ¶ 21 (citing State Bd.
11
for Cmty. Colls. & Occupational Educ. v. Olson,
687 P.2d 429
, 434
(Colo. 1984)).
¶ 24 In Colorado, plaintiffs benefit from a relatively broad definition
of standing. Ainscough, 90 P.3d at 855. To establish standing, a
plaintiff must have (1) suffered injury in fact (2) to a legally
protected interest. Id. (citing Wimberly v. Ettenberg,
194 Colo. 163
,
168,
570 P.2d 535
, 539 (1977)).
¶ 25 “Injury in fact exists if ‘the action complained of has caused or
has threatened to cause injury.’” Kreft v. Adolph Coors Co.,
170 P.3d 854
, 857 (Colo. App. 2007) (quoting Romer v. Colo. Gen.
Assembly,
810 P.2d 215
, 218 (Colo. 1991)). An injury in fact may
be tangible, such as physical damage or economic harm, or
intangible, such as aesthetic issues or the deprivation of civil
liberties. Ainscough, 90 P.3d at 856. A remote possibility of future
injury or an injury that is overly indirect or incidental is
insufficient. Barber, 196 P.3d at 246.
¶ 26 If the plaintiff establishes an injury in fact, “the court must
then determine whether this injury is to a legal interest which
entitles the plaintiff to judicial redress.” Olson, 687 P.2d at 435.
“Resolution of this second prong of standing basically rests on a
12
normative judgment that the injury is or is not actionable.” Id. The
question is whether the plaintiff has a claim for relief under the
constitution, the common law, a statute, or a rule or
regulation. Ainscough, 90 P.3d at 856; see also Kreft,
170 P.3d at 858
(“A legally protected interest must emanate ‘from a
constitutional, statutory, or judicially created rule of law that
entitles the plaintiff to some form of judicial relief.’” (quoting Bd. of
Cnty. Comm’rs v. Bowen/Edwards Assocs., Inc.,
830 P.2d 1045
,
1053 (Colo. 1992))).
¶ 27 An organization may have standing to assert claims on behalf
of its members if it shows that (1) its members would otherwise
have standing to sue in their own right; (2) the interests it seeks to
protect are germane to the organization’s purpose; and (3) neither
the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit. Jones, ¶ 29.
B. Additional Background
¶ 28 In its motion to dismiss, Montezuma County argued that CO2
lacked standing because its members lacked standing, and that its
members lacked standing because Kinder Morgan, as the Unit
13
operator, is the sole entity responsible for paying taxes for the Unit
and seeking abatement of those taxes.
¶ 29 In response, CO2 acknowledged that Kinder Morgan, as the
Unit operator, was exclusively obligated to submit the annual
property tax statement and to pay taxes on behalf of all
nonoperating fractional interest owners in the Unit, but it
contended that nothing in the governing statutes or guidelines
authorized Montezuma County “to deal only with the operator when
a retroactive assessment is in process.” Instead, it argued that
Montezuma County was required to provide notice to each of its
members, as taxpayers, and that each member should be able to
challenge the assessment or to seek an abatement.
¶ 30 The district court concluded that CO2 “is not a real party in
interest and lacks standing to maintain this lawsuit — because the
members of [CO2] are not real parties in interest with standing to
bring this suit against Montezuma County.” It concluded that the
members’ alleged injury was not “to a legally protected or cognizable
interest” because the statutory scheme governing oil and gas
taxation “vests all legal and constitutional rights to contest the tax
14
assessed and levied with the unit operator” and “require[s]
Montezuma County to interact only with the unit operator.”
C. Analysis
¶ 31 To determine whether CO2 has standing as an organization,
we must first determine whether CO2’s members would have
standing to sue in their own right. Jones, ¶ 29. Thus, we must
determine whether CO2 sufficiently alleged that its members
suffered an injury in fact to a legally protected interest emanating
from the constitution, a statute, a rule, a regulation, or the common
law. Kreft,
170 P.3d at 858
.
1. Injury in Fact
¶ 32 To satisfy the actual injury requirement for standing, CO2
must demonstrate that the challenged action caused or threatened
to cause actual injury to its members. Kreft,
170 P.3d at 858
.
¶ 33 In its complaint, CO2 alleged that Montezuma County violated
its members’ due process rights, guaranteed by the Fifth and
Fourteenth Amendments, by retroactively increasing the assessed
value of their property without providing the members notice and
an opportunity to challenge the assessment. It further alleged that
15
its members actually paid increased taxes as a result of the
retroactive assessment.
¶ 34 We agree with the district court that CO2 sufficiently alleged
that its members suffered an injury in fact — both the denial of due
process and an economic loss. See Morgan v. McCotter,
365 F.3d 882
, 888-89 (10th Cir. 2004) (where due process protections would
have alleviated harm, the plaintiff has alleged an injury in fact
(citing Rector v. City & Cnty. of Denver,
348 F.3d 935
, 943-44 (10th
Cir. 2003))); Hughey v. Jefferson Cnty. Bd. of Comm’rs,
921 P.2d 76
,
78 (Colo. App. 1996) (Allegations that plaintiff paid taxes assessed
on property “supply sufficient evidence of an economic injury to
satisfy the requirement for an injury in fact.”).
2. Legally Protected Interest
¶ 35 To satisfy the second criterion for standing, CO2 must
demonstrate that the injury allegedly suffered by its members is to
a legally protected interest. Ainscough, 90 P.3d at 856.
¶ 36 “Generally, the one who bears the financial burden of a tax is
a party aggrieved and thus has standing to challenge an
assessment.” Hughey,
921 P.2d at 78
. But here, the district court
concluded that “the statutory scheme promulgated vests all legal
16
and constitutional rights to contest the tax assessed and levied with
the unit operator” and that the “Colorado legislature does not grant
the non-operating interest owners any right or recourse to request
an audit or to contest the tax levied by the county.”
¶ 37 To resolve this issue, we must look to the Colorado statutes
and guidelines governing the assessment and taxation of oil and gas
leaseholds and land and determine whether CO2’s members have
the right to notice and an opportunity to challenge the retroactive
assessment or to seek an abatement of the increased tax. We
conclude that each nonoperating fractional interest owner who pays
taxes is entitled to the panoply of rights afforded a “property
owner,” “person,” or “taxpayer” under the review, audit, protest,
abatement, and appeal procedures detailed in the statutes and
guidelines. Thus, we conclude that the injury allegedly suffered by
CO2’s members is to a legally protected interest.
a. Rules of Statutory Interpretation
¶ 38 We review questions of statutory interpretation de novo. Traer
Creek-EXWMT LLC v. Eagle Cnty. Bd. of Equalization,
2017 COA 16
,
¶ 8. Our primary goals in interpreting a statute are to discern and
give effect to the General Assembly’s intent. Id. at ¶ 9. When
17
construing an administrative regulation, we apply the same rules of
construction that we would when interpreting a statute. Williams v.
Colo. Dep’t of Corr.,
926 P.2d 110
, 112 (Colo. App. 1996).
¶ 39 We first look to the ordinary and common meaning of the
language used, giving effect to every word whenever possible.
Cendant Corp. & Subsidiaries v. Dep’t of Revenue,
226 P.3d 1102
,
1106 (Colo. 2009). We read words and phrases in context and
construe them according to the rules of grammar and common
usage. § 2-4-101, C.R.S. 2020; Gagne v. Gagne,
2014 COA 127
,
¶ 25. And we read and consider the statutory and regulatory
scheme as a whole, giving consistent, harmonious, and sensible
effect to all its parts. Cendant Corp.,
226 P.3d at 1106
.
b. Oil and Gas Property Taxation Law
i. Valuing Oil and Gas Leaseholds
¶ 40 To ensure uniform taxation premised on uniform assessment
of property values, the General Assembly enacted article 7 of title
39, which governs the valuation of oil and gas leaseholds and lands
18
for the purpose of property taxation.5 Yuma Cnty. Bd. of
Equalization v. Cabot Petroleum Corp.,
856 P.2d 844
, 848 (Colo.
1993); see also § 39-3-103(2), C.R.S. 2020. The General Assembly
also delegated certain authority to the Property Tax Administrator
as the head of the Division of Property Taxation in the Department
of Local Affairs. See §§ 39-2-101, -109, C.R.S. 2020.
¶ 41 As relevant here, the Property Tax Administrator has the
authority to prepare and publish manuals, appraisal procedures,
and instructions concerning methods of appraising and valuing
land, and to prepare and publish guidelines concerning the audit
and compliance review of oil and gas leasehold properties for
property tax purposes. § 39-2-109(1)(e), (k). To this end, the
Property Tax Administrator prepares and publishes the ARL, a
series of manuals addressing Colorado property assessment. See 2
ARL Preface, at ii; 3 ARL Preface, at ii. The manuals, procedures,
instructions, and guidelines published by the Property Tax
Administrator must be used by assessors in valuing taxable
5 For real property classification, “oil and gas leaseholds and lands
includes all drilled wells producing any kind of petroleum or natural
gas product, such as oil, gas, or helium and carbon dioxide.” 3 ARL
at 6.21.
19
property. § 39-2-109(1)(e), (k); Huddleston v. Grand Cnty. Bd. of
Equalization,
913 P.2d 15
, 17 (Colo. 1996) (“[T]he manuals are
binding on the county assessors.”).
¶ 42 Under this statutory and regulatory scheme, oil and gas
leaseholds and lands are valued based on the selling price of the oil
or gas “at the wellhead” during the preceding calendar year. §§ 39-
7-101(1)(d), -102(1)(a). The “selling price at the wellhead” means
the “net taxable revenues realized by the taxpayer for sale of the oil
or gas, whether such sale occurs at the wellhead or after gathering,
transportation, manufacturing, and processing of the product.”
§ 39-7-101(1)(d); see also 3 ARL at 6.25. And “net taxable
revenues” are “equal to the gross lease revenues, minus deductions
for gathering, transportation, manufacturing, and processing costs
borne by the taxpayer pursuant to guidelines established by the
[Property Tax Administrator].” § 39-7-101(1)(d); see also 3 ARL at
6.25. The guidelines regarding what may be deducted from gross
lease revenues are set forth in the ARL. See, e.g., 3 ARL at 6.35-
6.47.
20
ii. Annual Property Tax Statement
¶ 43 Every operator of any producing oil or gas unit must file an
annual property tax statement for the unit by April 15 of each year.6
§ 39-7-101(1)(d); § 39-7-102(1)(a), C.R.S. 2020; 3 ARL at 6.25; see
also 3 ARL at 6.21 (specifying that the statement required to be filed
by April 15 of each year is an “Oil and Gas Real and Personal
Property Declaration Schedule”). The annual statement or
declaration schedule must include, among other things,
(a) The wellhead location thereof and the name
thereof, if there is a name;
(b) The name, address, and fractional interest
of the operator thereof;
(c) . . . [T]he quantity of gas measured in
thousands of cubic feet, sold or transported
from the wellhead during the calendar year
immediately preceding . . . ;
(d) The selling price at the wellhead . . . [; and]
(e) The name, address, and fractional interest
of each interest owner taking production in
kind and the proportionate share of total unit
revenue attributable to each interest owner
who is taking production in kind[.]
6 If there is no operator, every person owning any producing oil or
gas leasehold or lands is required to file the annual statement.
§ 39-7-101(1), C.R.S. 2020.
21
§ 39-7-101(1); see also 3 ARL at 6.21.7
iii. Assessor Valuation
¶ 44 Based on the annual statement filed by the operator, rather
than on its own independent verification of the volume and value of
the oil and gas produced, the county assessor determines the value
of the leaseholds and lands in the unit for assessment. § 39-7-
102(1)(a); KM II, ¶ 30 (“[T]he assessor relies on information that is
self-reported by the operator, typically without the means to
independently verify the volume and value of oil and gas produced
at the leasehold.”).
¶ 45 “[F]or taxable personal property on oil and gas leaseholds or
lands for which the operator has filed the statement required by
section 39-7-101(1),” the assessor must send a notice of valuation
7 By March 15 of each year, each nonoperating interest owner may
submit to the operator a report of the actual net taxable revenues
received at the wellhead by such owner for production taken in
kind. § 39-7-101(1.5). If the nonoperating interest owner timely
submits this information, the operator must use it to determine the
selling price at the wellhead to be reported in the annual statement.
Id. But, if the nonoperating interest owner does not timely submit
this information, “the amount of tax for which such nonreporting,
nonoperating interest owner is liable shall be calculated based on
the selling price at the wellhead reported by the operator.” Id.; see
also 3 ARL at 6.22-6.23.
22
of the property “only to the operator, who shall accept it.” § 39-5-
121(1.5)(b), C.R.S. 2020; see also § 39-7-102.5, C.R.S. 2020
(indicating that oil and gas leaseholds and lands valued pursuant to
article 7 follow the schedule for personal property regarding notices
of valuation and appeals of valuation). Even though the operator is
obligated to accept the notice of valuation, that acceptance “shall
not be construed as an indication that the operator agrees with the
amount of the actual value of the property stated in the notice or as
obligating the operator to pay the tax attributable to property in
which the operator has no ownership.” § 39-5-121(1.5)(b).
iv. Protest and Appeal of Valuation
¶ 46 Pursuant to section 39-5-122(2), “[i]f any person is of the
opinion that [their] property has been valued too high” by the
assessor, they may file a written “letter of objection and protest”
with the assessor’s office and be heard. If the protest is denied, the
assessor must mail a notice of determination to the “person
presenting the objection and protest so denied,” stating the reasons
for declining to change the valuation. § 39-5-122(2); see also 2 ARL
23
at 5.3.8 Any person whose objection and protest has been denied
may appeal to the county board of equalization. § 39-5-122(3); see
also § 39-8-106(1), (3); 2 ARL at 5.3. If the board of equalization
denies the petition, the petitioner may appeal. See §§ 39-8-108(1)-
(3), -107(1), C.R.S. 2020; see also § 24-4-106(9), (11), C.R.S. 2020;
2 ARL at 5.6.
v. Payment of Taxes on Fractional Interests in Lands
¶ 47 When oil and gas wells are owned by multiple owners and
operated as a unit, “the owner of each fractional interest in such
units shall be liable for the same proportion of the tax levied against
the total unit that his net taxable revenues received therefrom bears
to the total net taxable revenues received from such unit.” § 39-10-
106(1). Once taxes are levied, the unit operator is obligated to
collect a proportionate share from each fractional interest owner
8Although ARL Volume 3 is the manual specific to land valuation, it
provides that “[v]aluation and/or assessment issues not pertaining
directly to the valuation of land may be referenced to one of the
other ARL manuals, as appropriate.” 3 ARL Preface, at ii. The
mechanisms for protesting an assessment or seeking an abatement
of a levied tax are general valuation and/or assessment issues,
which are addressed in ARL Volume 2.
24
and remit the tax levied against the entire unit to the treasurer of
the county in which the unit is located. § 39-10-106(2).
¶ 48 If the unit operator collects tax from the fractional interest
owner as provided by statute, but fails to remit the amounts
collected, it becomes liable for such tax, and the fractional interest
owner “shall not be subject to any collection and enforcement
remedies” for such tax. § 39-10-106(2), (4)(b)(III). Failure of the
unit operator to collect tax from the fractional interest owner,
however, does not preclude the treasurer from employing “lawful
collection and enforcement remedies and procedures against the
owner of any fractional interest to collect the tax owed by such
owner.” § 39-10-106(4)(a).
vi. Abatement of Taxes Levied
¶ 49 Within two years after taxes are levied, a taxpayer may file a
petition with the board of county commissioners to request an
abatement of taxes due or a refund of taxes paid. 2 ARL at 5.12;
see also §§ 39-1-113, 39-10-114, C.R.S. 2020. If the petition for
abatement is denied, the petitioner may appeal. See § 39-10-
114.5(1), C.R.S. 2020; see also § 24-4-106(11); 2 ARL at 5.14.
25
vii. Audit and Post-Audit Procedures
¶ 50 Two statutory provisions authorize an assessor to retroactively
assess taxes on “omitted property”: sections 39-5-125(1) and 39-10-
101(2)(a)(I), C.R.S. 2020. KM II, ¶ 25. The question before the
Colorado Supreme Court in KM II was whether underreporting of
the value of oil and gas produced at a leasehold constitutes
“omitted property” subject to corrective assessment under these two
provisions. Id. It concluded that “the statutory scheme governing
property taxation of oil and gas leaseholds and lands authorizes the
retroactive assessment of property taxes when an operator
underreports the volume or selling price of the oil and gas it
produces.” Id. at ¶ 34.
¶ 51 To this end, the ARL authorizes assessors to conduct reviews
or audits of “taxpayer oil and gas declarations” and request
additional information related to the wells owned or operated by
“the taxpayer.” 3 ARL at 6.52. It also authorizes counties to
establish reasonable audit procedures “to fairly and accurately
determine the actual value of oil and gas leaseholds and lands.” 3
ARL at 6.55. And it specifies what procedures a county’s audit
program must include and what rights a county must provide to “all
26
taxpayers” subject to an audit. 3 ARL at 6.56; see also 2 ARL at
9.79-9.82.
c. The Injury CO2 Alleged Is to a Legally Protected Interest
¶ 52 The General Assembly has established a unique representative
structure under which the unit operator is responsible for reporting
and paying property taxes levied against oil and gas leaseholds and
lands that are operated as a unit. But it has not expressly provided
a similar representative structure for protesting and appealing a
retroactive assessment or for petitioning for abatement of an
increased tax liability.
¶ 53 As set forth below, notwithstanding the fact that the operator
is obligated to report, collect, and remit taxes for the unit, the
nonoperating fractional interest owner remains liable for and must
pay its proportionate share of the taxes. And the governing statutes
and ARL vest audit, protest, abatement, and appeal rights in a
“taxpayer,” “property owner,” and “person,” terms that include a
nonoperating fractional interest owner who pays taxes. In the
absence of clear statutory language vesting all such rights in the
unit operator, we must conclude that nonoperating fractional
27
interest owners who pay taxes maintain such rights and have
standing to sue to enforce them.
¶ 54 When oil and gas wells are operated as a unit, the operator
alone is obligated to file an annual property tax statement for the
unit. § 39-7-101; 3 ARL at 6.21 (the property tax statement is also
called a declaration schedule or an oil and gas declaration under
the ARL). Based on that annual statement, the county assessor
determines the value of the oil and gas leaseholds and lands in the
unit and issues a notice of valuation. §§ 39-7-102(1)(a), -102.5;
§ 39-5-121(1.5).
¶ 55 Typically, the assessor is required to mail the notice of
valuation to “each person who owns land.” § 39-5-121(1)(a)(I). But
the parties appear to agree (so we will assume without deciding it is
so) that the legislature has relieved assessors of the obligation to
provide a notice of valuation to each nonoperating fractional
interest owner in a unit by specifying that the assessor must
28
provide the notice of valuation “only to the operator, who shall
accept it.” § 39-5-121(1.5)(b).9
¶ 56 By accepting the notice of valuation, however, the operator
does not acquiesce to the valuation or otherwise become liable for
any tax attributable to property owned by others. Id. That is
because, even though taxes are levied against the “total unit,” each
fractional interest owner in the unit is liable for its proportionate
share of the taxes. § 39-10-106(1).
9 The parties assert that section 39-5-121(1.5)(b), C.R.S. 2020,
authorizes an assessor to issue an initial notice of real property
valuation for all the oil and gas leaseholds and lands in a unit only
to the unit operator. We are not so sure. That section provides, in
relevant part, that “for taxable personal property on oil and gas
leaseholds or lands” for which the operator has filed an annual
statement, “the assessor shall send the notice of valuation only to
the operator.” Id. (emphasis added). Both real and personal
property on oil and gas leaseholds and lands are taxed. See §§ 39-
1-104, 39-7-102, C.R.S. 2020. And although real property
assessments for oil and gas leaseholds and lands “shall follow the
schedule for personal property . . . regarding notices of valuation,”
§ 39-7-102.5, C.R.S. 2020 (emphasis added), we see nothing in the
statutes requiring that real property assessments follow the same
procedure as personal property assessments. Further, the ARL
specifies that different notices of valuation are to be used for
“reporting oil and gas production” and for reporting “[p]ersonal
property used in the production of oil and gas.” 2 ARL at 9.55.
However, because neither party raised this concern, and because it
does not affect our disposition, we assume without deciding that
the parties are correct, and that the assessor is authorized to send
an initial notice of real property valuation only to the unit operator.
29
¶ 57 Similarly, although the unit operator is obligated to collect
taxes from the nonoperating fractional interest owners and to remit
to the treasurer the full amount of the tax levied against the unit,
the operator’s failure to collect a proportionate share of the tax from
the nonoperating fractional interest owner does not preclude the
treasurer from pursuing collection remedies against that owner to
collect the tax. § 39-10-106(1), (4)(a); see also § 39-7-108, C.R.S.
2020.
¶ 58 Thus, although the operator alone is obligated to report,
collect, and remit taxes for the unit, the nonoperating fractional
interest owner is ultimately liable for and must pay its
proportionate share of the taxes levied against the unit.
¶ 59 The retroactive tax liability in this case arose after an audit.
The governing statutes do not provide specific audit procedures;
instead, they authorize the Property Tax Administrator to prepare
and publish audit guidelines that bind county assessors. § 39-2-
109(1)(k); Huddleston, 913 P.2d at 17. Thus, the ARL provides the
audit procedures applicable to Montezuma County’s audit of the
2008 tax statement filed by Kinder Morgan.
30
¶ 60 Under the ARL, the assessor is required to provide a letter to
“the taxpayer” indicating that an audit of “that taxpayer’s oil and
gas declaration” will soon commence. See 3 ARL at 6.55. Upon
completion of the audit, the county must mail its preliminary audit
findings to “the taxpayer at the address recorded on the annual
declaration,” and give “the taxpayer” thirty days to provide
additional information. Id. at 6.56.
¶ 61 Notably, the nonoperating fractional interest owners’ names
and addresses must be included in the annual tax statement. § 39-
7-101(1)(e). So, the assessor should have access to each fractional
interest owner’s address based on the annual statement to provide
that owner with the letter and preliminary audit findings required
by the ARL audit procedures.
¶ 62 If, as a result of the audit, a change in valuation is
determined, the county must issue a special notice of valuation. 3
ARL at 6.56. In contrast to section 39-5-121(1.5)(b), the ARL does
not specify to whom the special notice of valuation must be sent.
But the ARL requires the county to provide certain rights to “all
taxpayers” subject to an audit — including the right to protest the
indicated value within thirty days — which rights could not be
31
exercised if the taxpayer did not receive the special notice of
valuation from the county. See 3 ARL at 6.56.
¶ 63 The county must include with each special notice of valuation
a special protest form to be completed by “the property owner” to
initiate a protest of the valuation of the property. 2 ARL at 9.55.
The “specific requirements” set forth in the ARL for the special
protest form indicate that “[p]ursuant to §§ 39-5-121(1) and 39-5-
122(2), C.R.S., every [special notice of valuation] must be sent along
with a form that, if completed by the property owner, allows the
property owner to explain the basis for the protest of the property’s
valuation or classification.” 2 ARL at 9.70.
¶ 64 Indeed, the ARL plainly states: “The Division recommends that
assessors require letters of agency from persons who are not the
owner of record but are filing a protest on behalf of the property
owner. The owner is the only person recognized by law to have
‘standing’ to file a protest.” 2 ARL at 5.2. And the Property Tax
Administrator’s “interpretations of the taxation statutes as
embodied in the ARL are entitled to judicial deference.” Manor Vail
Condo. Ass’n v. Bd. of Equalization,
956 P.2d 654
, 659 (Colo. App.
1998).
32
¶ 65 Under section 39-5-122(2), to which the special protest form
refers, any “person” who believes their property “has been valued
too high” has the right to object and protest an assessment.
“Person” means “natural persons, corporations, partnerships,
limited liability companies, associations, and other legal entities
which are or may become taxpayers by reason of the ownership of
taxable real or personal property.” § 39-1-102(9); see also 2 ARL at
5.1 (“If a taxpayer disagrees with the value assigned by the
assessor, the taxpayer may file a protest during the statutory
protest period.”).
¶ 66 If a taxpayer files a protest, the county must issue a special
notice of determination, which must include a written explanation
“regarding the basis for the omitted property and the county’s
decision” and an advisement of the taxpayer’s right to file an
abatement petition. 3 ARL at 6.56. Again citing section 39-5-
122(2), the ARL requires that the special notice of determination be
mailed to “each property owner who filed a protest with the
[a]ssessor.” 2 ARL at 9.79.
¶ 67 The special notice of determination itself advises the recipient
of the right to “continue your appeal” by filing a petition for
33
abatement with the county. 2 ARL at 9.82. It then refers to
sections 39-1-113 and 39-10-114 and advises the recipient of the
right to appeal any unsatisfactory decision of the board of county
commissioners to the board of assessment appeals. Id. Under the
statutes and the ARL, the “taxpayer” is the one vested with the right
to file a petition for abatement. See § 39-1-113; 2 ARL at 5.13-5.14.
Again, the ARL confirms: “As with taxpayers filing protests, a
taxpayer must have proper standing to file an abatement petition.
The first criterion is ownership.” 2 ARL at 5.15.
¶ 68 “Taxpayer” is not defined in the ARL, but its plain meaning
and dictionary definition is “[s]omeone who pays or is subject to a
tax.” Black’s Law Dictionary (11th ed. 2019); accord Merriam-
Webster Dictionary, https://perma.cc/D429-STMG (defining
“taxpayer” as “one that pays or is liable for a tax”); see also People v.
Allman,
2019 CO 78
, ¶ 15 (“Because the statute does not
specifically define the word . . . , we look to the plain and ordinary
meaning of the word, aided by the dictionary definition.”).
¶ 69 Thus, based on the plain language of the statutes and the ARL
— which we are required to interpret together, to give consistent,
harmonious, and sensible effect to all the provisions, see Cendant
34
Corp.,
226 P.3d at
1106 — we conclude that each nonoperating
fractional interest owner who pays taxes is a “property owner,” a
“person,” and a “taxpayer” entitled to the panoply of rights afforded
such “property owner,” “person,” or “taxpayer” under the review,
audit, protest, abatement, and appeal procedures detailed in the
ARL and related statutes. See 3 ARL at 6.52-6.56.
¶ 70 Nothing in the statutes or the ARL indicates that a unit
operator is the only “property owner” to whom a special notice of
valuation and special protest form need be sent, see 2 ARL at 9.55,
9.70, 9.79, or who has standing to file a protest, see 2 ARL at 5.2.
Nothing in the statutes or the ARL indicates that a unit operator is
the only “person” who may protest the valuation of the leaseholds
and lands in an oil and gas unit as reflected in a notice of valuation
or special notice of valuation. See § 39-5-122(2). Nothing in the
statutes or the ARL indicates that a unit operator is the only
“taxpayer” who is entitled to be notified of an audit, receive
preliminary audit findings from the assessor, or protest the
assessment, see 3 ARL at 6.56, or who has standing to file a
petition for abatement of taxes levied against the unit, see § 39-1-
113; 2 ARL at 5.13-5.15. Nothing in the statutes or ARL vests these
35
rights exclusively in the unit operator or appoints the unit operator
as the statutory agent or representative of all nonoperating
fractional interest owners when oil and gas wells are operated as a
unit. And nothing in the ARL audit guidelines mandates a different
procedure when the property is retroactively assessed or when taxes
are increased retroactively.
¶ 71 We acknowledge that our holding today may upset settled
practices regarding how counties review, audit, and retroactively
assess the value of oil and gas leaseholds and lands and how they
handle protests and petitions for abatement resulting from such
retroactive assessments. It may also contravene the expectations of
many nonoperating fractional interest owners, who may presume
that the unit operator will handle such matters on their behalf. To
be sure, this may be a case of “be careful what you wish for”
because if an individual nonoperating fractional interest owner is
entitled to receive notice of and challenge the retroactive assessment
of its property, then it is equally obligated to raise such a challenge
on its own behalf or designate an agent to protest for it. See 2 ARL
at 5.2.
36
¶ 72 But our primary objective when interpreting the governing
statutes and the ARL is to effectuate the General Assembly’s intent
“by looking to the plain meaning of the language used, considered
within the context of the statute as a whole.” Hogan v. Bd. of Cnty.
Comm’rs,
2018 COA 86
, ¶ 11 (citation omitted), aff’d sub nom. Mook
v. Bd. of Cnty. Comm’rs,
2020 CO 12
. We cannot insert words into
a statute. See id. at ¶ 23 (declining to “judicially rewrite” statutes to
support government’s interpretation of term in ARL) (citation
omitted). Absent clear language authorizing the unit operator to
represent all tax-paying nonoperating fractional interest owners in
the review, audit, protest, and abatement procedures, each such
taxpayer has standing to assert that its rights in such procedures
have been violated.
¶ 73 CO2 alleged that its members have suffered an injury in fact
— the deprivation of due process and an economic loss — to a
legally cognizable interest as contemplated by statutory and
constitutional provisions. Thus, we conclude that CO2’s members
have standing to bring the claims asserted in the complaint against
Montezuma County.
37
¶ 74 This conclusion, however, does not end the inquiry because
CO2 must also have organizational standing to bring the asserted
claims on behalf of its members. Jones, ¶ 29. We have already
concluded that CO2’s members would have standing to sue in their
own right. But for CO2 to have organizational standing, the
interests it seeks to protect must be germane to the organization’s
purpose and the claims asserted and the relief requested must not
require participation by individual members in the lawsuit. Id.
¶ 75 Because the district court determined that CO2’s members
lacked standing in their own right, it did not determine whether
CO2 met the remaining criteria to have organizational standing.
Neither party has argued that we should determine this question for
the first time on appeal. Accordingly, the district court must
address this issue on remand.
¶ 76 In reaching our conclusion today, we express no opinion as to
the merits of CO2’s arguments. The district court disposed of this
case on standing. Standing is a threshold issue separate from
resolution of the merits. Barber, 196 P.3d at 245. We have
concluded that CO2’s members have standing. Thus, we remand to
the district court for further proceedings.
38
III. Real Party in Interest
¶ 77 CO2 contends on appeal that the district court erred by
concluding it was not “the real party in interest” with standing to
maintain the action. But the court’s order in this regard appears to
contradict itself. The court first concluded that CO2 was the real
party in interest under C.R.C.P. 17(a), finding that CO2 was “a
party with whom or in whose name a contract has been made for
the benefit of another.” But then, as part of its standing analysis,
the court found that CO2 “is not a real party in interest and lacks
standing to maintain this lawsuit.”
¶ 78 Colorado Rule of Civil Procedure 17(a) provides that “[e]very
action shall be prosecuted in the name of the real party in interest.”
The purpose of the rule is “to protect defendants from the
harassment of lawsuits by persons who do not have the power or
right to make final and binding decisions concerning prosecution,
compromise, and settlement.” Williams v. Genesee Dev. Co. No. 2,
759 P.2d 823
, 825 (Colo. App. 1988). “The real party in interest is
that party who, by virtue of substantive law, has the right to invoke
the aid of the court in order to vindicate the legal interest in
question.” Goodwin v. Dist. Ct.,
779 P.2d 837
, 843 (Colo. 1989).
39
¶ 79 The concepts of “real party in interest” and “standing” are
often confused. 5A Stephen A. Hess, Colorado Practice Series:
Handbook On Civil Litigation § 4:2, Westlaw (2020 ed. database
updated Oct. 2020). “The distinctions between these categories are
not always clear, and sometimes the inquiries overlap.” Id. Our
courts have, on occasion, analyzed standing and real party in
interest together. See, e.g., Miller v. Accelerated Bureau of
Collections, Inc.,
932 P.2d 824
, 825 (Colo. App. 1996); Summers v.
Perkins,
81 P.3d 1141
, 1142 (Colo. App. 2003).
¶ 80 Standing “is the broadest and most substantive idea, which
insures that plaintiffs assert only those claims demonstrating a
legally cognizable injury so that the jurisdiction of the courts is
exercised only when an actual controversy exists.” Hess, § 4.2.
When the real party in interest is in issue, however, “there is
usually no question about whether a legally cognizable claim has
been stated. Instead, the question is to determine who possesses
the right to assert the claim . . . .” Id. Thus, even if a plaintiff has
standing to bring a claim, they may not be the real party in interest
if, for example, they have assigned that claim to a third party. See
40
Platte Valley Mortg. Corp. v. Bickett,
916 P.2d 631
, 633 (Colo. App.
1996) (“An assignee of a claim is a real party in interest.”).
¶ 81 We have already concluded, as part of our standing analysis,
that CO2’s members have the right to invoke the aid of the court to
vindicate their rights under the constitution, statutes, and ARL
guidelines. CO2’s members are real parties in interest. But CO2’s
members are not the plaintiffs; CO2 is the plaintiff.
¶ 82 Rule 17(a) provides that “a party with whom or in whose name
a contract has been made for the benefit of another . . . may sue in
his own name without joining with him the party for whose benefit
the action is brought.” The district court found that CO2 was such
a party. Neither party appeals that finding and we see no reason to
disturb it.10
IV. Attorney Fees
¶ 83 CO2 contends that it is entitled to attorney fees pursuant to
C.A.R. 38(b) and 39.1 because Montezuma County’s defense of the
district court’s order was frivolous and groundless under section
10Because of our disposition, we need not address CO2’s remaining
contention that the district court erred by denying its post-
dismissal motion to amend its complaint.
41
13-17-102(4), C.R.S. 2020. CO2 does not appeal the district court’s
ruling that the parties are to bear their own attorney fees and costs
incurred at the trial court level. Instead, it seeks attorney fees for
Montezuma County’s defense of the district court orders on appeal.
We conclude that CO2 is not entitled to appellate attorney fees.
¶ 84 A court must award attorney fees against a party who
“brought or defended a civil action, either in whole or in part, that
the court determines lacked substantial justification.” § 13-17-
102(2); see also § 13-17-102(4). An action lacks substantial
justification if it is “substantially frivolous, substantially
groundless, or substantially vexatious.” § 13-17-102(4); see also
Castillo v. Koppes-Conway,
148 P.3d 289
, 292 (Colo. App. 2006).
¶ 85 An appeal should be considered frivolous only “if the
proponent can present no rational argument based on the evidence
or law in support of a proponent’s claim or defense, or the appeal is
prosecuted for the sole purpose of harassment or delay.” Mission
Denver Co. v. Pierson,
674 P.2d 363
, 366 (Colo. 1984). And we
should award attorney fees on appeal as a sanction under C.A.R.
38(b) only in “clear and unequivocal cases” of “egregious conduct.”
Wood Bros. Homes, Inc. v. Howard,
862 P.2d 925
, 935 (Colo. 1993).
42
¶ 86 We do not find that Montezuma County’s defense of the
district court’s order lacks substantial justification. Even though it
was ultimately unsuccessful, Montezuma County presented rational
arguments based on the evidence and the law — a particularly
complicated scaffold of statutes and guidelines — in support of its
claims. See Mission Denver Co., 674 P.2d at 366 (finding that
appeal was not frivolous “merely because [it was] ultimately
unsuccessful). Therefore, we decline to award CO2 its appellate
attorney fees.
V. Conclusion
¶ 87 We reverse the district court’s order dismissing the complaint
for lack of standing and remand for further proceedings consistent
with this opinion.
JUDGE ROMÁN and JUDGE WELLING concur.
43 |
4,669,326 | 2021-03-18 23:02:09.358955+00 | null | https://www.courts.ca.gov/opinions/nonpub/A157356.PDF | Filed 3/18/21 P. v. North River Insurance Co. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v. A157356
THE NORTH RIVER INSURANCE
COMPANY,
(San Mateo County
Defendant and Appellant,
Super. Ct. No. 19CIV00097)
BAD BOYS BAIL BONDS,
Real Party in Interest and Appellant.
The North River Insurance Company (North River) and Bad Boys Bail
Bonds (Bad Boys) appeal from a summary judgment entered on a bail bond
and an order denying their motion to set aside the judgment. They contend
the trial court lacked jurisdiction to enter the summary judgment because the
defendant had a sufficient excuse for failing to appear. We will affirm.
1
I. FACTS AND PROCEDURAL HISTORY
North River, as surety, and Bad Boys, as bail agent, posted a bail bond
in the amount of $45,000 guaranteeing the appearance of criminal defendant
Matthew Lee Kennedy.
On May 25, 2018, Kennedy failed to appear in court as required by law.
The court (Judge Holt) declared the bond forfeited in open court. Notice of
the forfeiture was mailed to appellants on June 4, 2018.
During the 180-day appearance period ending on December 6, 2018, no
motion was filed to vacate the forfeiture or exonerate bail (Pen. Code, § 1305)
or to obtain an extension of the time to bring Kennedy into court (§ 1305.4).1
Summary judgment on the bond was signed by Judge Finigan on
December 19, 2018. The judgment recites that Kennedy failed to appear on
May 25, 2018 “without sufficient excuse” and the court had forfeited the
bond. It orders that judgment be entered for $45,000 against North River
and in favor of the People pursuant to section 1306. The judgment was filed
on January 8, 2019, and the court clerk mailed notice of the entry of the
judgment that same day.
Meanwhile, on December 26, 2018—after the judgment was signed but
before it was filed—the defendant appeared in court. His lawyer stated:
“Your Honor, Mr. Kennedy has family in the courtroom, and they want the
Court to be aware Mr. Kennedy has a developmental disability. He came to
court on his last day, but was separated from the friend that brought him to
the courthouse. [¶] His wife will support him to make sure he comes to court
and will provide transportation and reminders.” No evidence was offered to
substantiate defendant’s disability or his inability to appear at the May 2018
1 Except where indicated otherwise, all statutory references are to the
Penal Code.
2
hearing without assistance, and there was no request to set aside the bail
forfeiture or exonerate the bond. Ruling on Kennedy’s custody status, the
court (Judge Runde) declined to release Kennedy on his own recognizance in
view of his prior convictions and failures to appear, but reset bail in a lower
amount.
On February 4, 2019, North River and Bad Boys filed a motion to set
aside the summary judgment, vacate the forfeiture, and exonerate the bond
pursuant to Code of Civil Procedure section 473, subdivision (d). The motion
did not assert that Kennedy had a sufficient excuse for failing to appear at
the May 25, 2018 hearing. Instead, appellants made other
contentions—which they represent in their opening brief that they are not
pursuing in this appeal—that the court failed to declare the bail forfeited in
“open court” (an accusation they later withdrew) , the original order setting
bail violated due process under In re Humphrey (2018)
19 Cal.App.5th 1006
,
and the summary judgment was invalid because it was entered by a judge
other than the one who declared the bail forfeited (a proposition rejected in
People v. North River Insurance Co. (2020)
53 Cal.App.5th 559
, 565).
Respondent filed an opposition to the motion.
II. DISCUSSION
A. Legal Framework
When a defendant, “without sufficient excuse,” fails to appear in court
when lawfully required, the court must declare in open court that the bail
bond is forfeited. (§ 1305, subd. (a)(1)(D).) Lack of a “sufficient excuse” is a
jurisdictional prerequisite to a declaration of forfeiture. (People v. Safety
National Casualty Corp. (2016)
62 Cal.4th 703
, 709–710; People v. The North
River Ins. Co. (2019)
37 Cal.App.5th 784
, 791.)
3
Once bail has been forfeited, the clerk must mail a notice of forfeiture
to the surety. (§ 1305, subd. (b).) The surety then has 180 days, known as
the “appearance period,” to bring the defendant into court. (§ 1305, subd. (c).)
Within the statutory appearance period, the surety may seek an extension of
the time to locate the defendant (§ 1305.4) or file a motion requesting relief
from the forfeiture and exoneration of the bail. (People v. Financial Casualty
& Surety, Inc. (2017)
14 Cal.App.5th 127
, 133.) The surety bears the burden
of establishing, with competent evidence, entitlement to relief from the
forfeiture. (People v. Accredited Surety & Casualty Co. (2004)
132 Cal.App.4th 1134
, 1139, 1147.)
Once the appearance period passes, the trial court has no jurisdiction to
vacate the bail forfeiture and exonerate the bond. (People v. The North River
Ins. Co. (2017)
18 Cal.App.5th 863
, 871 [“A trial court lacks jurisdiction to
entertain a motion to vacate forfeiture if filed after the appearance period has
ended.”]; see § 1305, subd. (j); People v. Topa Ins. Co. (1995)
32 Cal.App.4th 296
, 300–301 [trial court lacked jurisdiction to consider motion for relief from
forfeiture that was filed on the last day of the appearance period].)
If the bail forfeiture has not been set aside, the court must enter
summary judgment on the bond in favor of the People. (§ 1306; People v.
American Contractors Indemnity Co. (2004)
33 Cal.4th 653
, 657.)
B. Analysis
Appellants contend the court lacked jurisdiction to enter summary
judgment on the bond because Kennedy had a sufficient excuse for his
non-appearance. They point to defense counsel’s statement on December 26,
2018, that Kennedy had a developmental disability and had not appeared
because he became separated from a friend who was assisting him. They
contend this “new fact was undisputed” and should have been considered by
4
Judge Finigan in deciding whether to issue summary judgment. They also
ask us to find that there was a sufficient excuse as a matter of law. Their
argument is meritless.
In the first place, appellants’ argument is untimely. Although “the lack
of a sufficient excuse for the defendant’s nonappearance” has been described
as a “jurisdictional prerequisite[]” for declaring a forfeiture (People v. Safety
National Casualty Corp., supra, 62 Cal.4th at p. 710), the existence of such
an excuse cannot be raised for the first time in this appeal.2 To the contrary,
if a bail forfeiture is not challenged within the appearance period, it is waived
and the court no longer has jurisdiction to set the forfeiture aside. (People v.
The North River Ins. Co.,
supra,
18 Cal.App.5th at p. 871.) Here, notice of the
forfeiture was mailed to appellants on June 4, 2018, so the 180-day
appearance period, extended by five days for mailing, expired on December 6,
2018. Appellants did not file a motion to vacate the forfeiture and exonerate
the bond by that deadline (indeed, ever). Moreover, when appellants filed
2 If a judgment were issued by a court without fundamental jurisdiction,
the judgment would be void and subject to attack at any time. To this end,
appellants claim “the trial court does not have fundamental jurisdiction over
a bail forfeiture until the jurisdictional prerequisites [such as the defendant’s
lack of a sufficient excuse for failing to appear] are met.” But that is
incorrect. Fundamental jurisdiction pertains to the court’s power to hear a
matter, in this case with respect to the bail bond. The superior court has
fundamental jurisdiction over a bail bond “ ‘from the point that it is issued
until the point it is either satisfied, exonerated, or time expires to enter
summary judgment after forfeiture.’ ” (People v. American Contractors
Indemnity Co.,
supra,
33 Cal.4th at p. 663, italics added.) Thus, while
forfeiting bail on a bond that has already been exonerated would be an act in
absence of fundamental jurisdiction (People v. Safety National Casualty Corp.
(2007)
150 Cal.App.4th 11
, 17), forfeiting bail on a valid bond (and thereafter
entering summary judgment on the bond), where the defendant had a
sufficient excuse, would merely be acts in excess of the court’s jurisdiction
over the bond, rendering the summary judgment voidable, not void.
5
their motion to set aside the summary judgment, they did not argue that
Kennedy had a sufficient excuse for not appearing. Appellants do not provide
authority that the judgment, or the order denying a motion to set it aside, can
be reversed on a ground not presented to the trial court. (People v. Accredited
Surety & Casualty Co.,
supra,
132 Cal.App.4th at p. 1148 [surety cannot raise
theory for vacating forfeiture for first time on appeal].)
At any rate, appellants fail to demonstrate that Kennedy had a
sufficient excuse for his non-appearance. A “ ‘defendant’s failure to appear
without explanation is presumptively without sufficient excuse’ ” (People v.
North River Ins. Co.,
supra,
37 Cal.App.5th at p. 796), and no explanation
was given for Kennedy’s no-show at the May 25 , 2018 hearing. Appellants
(or Kennedy) thereafter had the burden of showing, by “competent evidence,”
an entitlement to relief from the forfeiture. (People v. Accredited Surety &
Casualty Co.,
supra,
132 Cal.App.4th at pp. 1139, 1146–1148.) Although
counsel belatedly made a statement about Kennedy’s circumstances at a
custody hearing, no evidence was presented to support the assertion or a
conclusion that Kennedy had a sufficient excuse for failing to appear.
Appellants therefore fail to show that the summary judgment is voidable, let
alone void. And because the judgment was not void, there was no basis for
setting it aside as void under Code of Civil Procedure section 473, subdivision
(d).
Lastly, contrary to appellants’ argument, the assertion made by defense
counsel to Judge Runde at the custody hearing could not have been
considered by Judge Finigan before he signed the judgment. Judge Finigan
signed the judgment seven days before counsel’s assertion. As appellants
stated elsewhere in their opening brief, “it was not possible for Judge Finigan
to take into account the excuse provided by Kennedy’s counsel at the hearing
6
on December 26, 2018.” Although the judgment was not filed by the clerk
until after defense counsel’s statement, there is no indication Judge Runde
knew of the judgment or its pendency with the clerk, or that Judge Finigan
found out that counsel had made the statement to Judge Runde before the
judgment was filed. And even if knowledge of counsel’s statement were
imputed to the court and its clerk, counsel’s statement would not have
compelled any change to the judgment for the reasons stated ante.
Appellants fail to establish error.
III. DISPOSITION
The judgment, and the order denying appellants’ motion to set aside
the judgment, are affirmed.
7
‘
NEEDHAM, J.
We concur.
SIMONS, Acting P. J.
BURNS, J.
People v. North River Insurance Co. / A157356
8 |
4,669,327 | 2021-03-18 23:02:09.913795+00 | null | https://www.courts.ca.gov/opinions/nonpub/C089698.PDF | Filed 3/18/21 P. v. Morgane CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089698
Plaintiff and Respondent, (Super. Ct. No. 18FE020173)
v.
VICTOR MORGANE,
Defendant and Appellant.
A jury found defendant Victor Morgane guilty of assaulting and threatening his
girlfriend over a period of several hours spanning several different locations. The trial
court sentenced him to an aggregate term of four years eight months in state prison.
Defendant now contends the trial court erred in failing to apply Penal Code section 6541
1 Undesignated statutory references are to the Penal Code.
1
to two of his six counts of conviction--count two, assault with a deadly weapon (mop
handle), and count five, criminal threats. Finding no error, we affirm.
FACTUAL AND PROCEDURAL HISTORY
We include only the facts and procedural details relevant to defendant’s single
sentencing claim on appeal.
Defendant and the victim had an “off and on” romantic relationship for four years.
They also had a daughter together. One night defendant called the victim repeatedly to
discuss their relationship. She turned off her cell phone. The next morning, defendant
arrived unannounced at her home and told her that he would wait for her while she took
her older children to school. When the victim returned with only her toddler daughter,
defendant asked the victim whether they were going to “do this” inside or outside. They
went inside the victim’s home.
Once inside, defendant slapped the victim (knocking her to the ground) and
grabbed her keys and phone from her purse. As she tried to get up, defendant said, “don’t
you move” and kicked her twice in her side. He told their toddler that she was not his
child and her mother was a “whore.” He grabbed the victim by her braids and dragged
her to her bedroom, pulling out a braid and leaving a bald spot. He told her: “I’m going
to make you feel everything that you made me feel. I’m going to make you feel the hurt
and the pain that I felt all this time.”
For 20 to 30 minutes, he went through her phone, pacing around the room while
reading sexualized messages between her and other men. Every time she asked him to
stop, he would hit her on her side with a closed first. He called her names and accused
her of cheating on him. He hit her in the face with a water bottle, poured the water on
her, and slapped her face. Both before and after he looked at her phone, he told her,
“bitch, you are going to die today,” and “I’m going to kill you.” She was very scared and
believed his threats, because he had never been so angry before.
2
Defendant then grabbed a mop and told the victim: “I’m going to sit here. I’m
going to torture you. I’m going to drag this out.” He then hit her with the mop handle
four or five times on her arms and hand while she blocked her face, until the mop handle
bent in half. He straddled her on the bed and looped the ends of her romper belt around
his hands, pressing down on her neck for one to two minutes until she felt like she might
pass out. As he choked her, he yelled at her and told her she was going to die. As she
pleaded for him to stop, he said: “I’m not going to stop anything. . . . [Y]ou really are
going to die today. I’m just trying to figure out how. Either I’m going to shoot you . . .
I’m going to strangle you . . . I’m going to choke you to death. I’m going to do
something.” At some point while they were in the bedroom, he told her he had a gun.
Defendant then took the victim and their daughter in the car, claiming he was
headed for the victim’s “boyfriend’s house” and that “this is going [to] go on all day.”
As defendant drove, he went through the victim’s messages and began calling her
contacts. He called her male cousin and said he was about to “pull up” on him so he
could “watch this bitch get fucked up since you love her so much.” He made a U-turn,
demanded the cousin’s address, and punched the victim in the eye when she refused to
provide it.
Eventually defendant called the victim’s female cousin. He told this cousin that
“This bitch is going to die today. I don’t give a fuck who you are to her.” Defendant
eventually stopped the car at a park. He told the victim to let their daughter go play
because “this is about to end right here.” The victim initially took his words to mean that
he was going to kill her at the park. She thought he would shoot her because he kept
telling her that he had a gun and that he would shoot her and motioning like he had a gun
in his backpack. She had also seen a gun in a bag in his car’s back seat about two months
ago, and he had previously mentioned that he’s “always protected.” They all got out of
the car, and defendant accessed his trunk where his backpack was located.
3
The female cousin with whom defendant had been speaking on the phone had
apparently located the family at the park and drove up beside them around that same
time; the victim and her daughter got into her car and left defendant at the park. The
cousin drove the victim to the hospital. The victim had suffered multiple injuries,
including a swollen and bruised hand caused by blocking punches and blows from the
mop handle.
The entire ordeal lasted approximately four hours; the victim testified that she was
“scared to death” the whole time. She testified defendant told her “you are going to die
today. I just don’t know how yet,” approximately four times. The first time was while he
choked her, then again before they left the house, and multiple times at the park.
Defendant told detectives that he “lost it,” and “just wanted her to feel what I feel. The
abandonment, pain and hurt, the emotional roller coaster ride, the mental distress that I
have.” He denied having a firearm or threatening anyone with a firearm.
A jury found defendant guilty of false imprisonment by violence or menace
(§ 236/237a; count one), assaulting the victim with a deadly weapon (a mop handle)
(§ 245, subd. (a)(1); count two), simple assault (§ 240, subd. (a)(1); count three),
inflicting corporal injury resulting in a traumatic condition (§ 273.5, subd. (a); count
four), making criminal threats (§ 422; count five), and child abuse (§ 273a, subd. (b);
count six).
At sentencing, the trial court found that defendant harbored separate objectives for
counts two and five. Thus, it concluded section 654 was not applicable to count five.
The court explained that defendant’s objective on the assault with a deadly weapon “was
to physically hurt” the victim, while his objective on the criminal threats charge was to
“instill fear or mental torment.” Finding that “the crimes and their objectives” for counts
two and five “were predominately independent of each other and or involved separate
acts of violence, or threats of violence,” the court sentenced defendant to the upper term
of four years on count two and one-third the midterm of eight months on count five,
4
consecutive. The court applied section 654 to stay the sentences for count one (three
years), count three (180 days), and count four (four years) and imposed a concurrent 180
day sentence for count six.
DISCUSSION
Defendant argues the trial court erred when it found section 654 did not apply to
counts two and five. He contends that contrary to the trial court’s findings, defendant’s
threats throughout the ordeal, including while he assaulted the victim, were part of an
indivisible course of conduct showing that defendant harbored a single objective and
intent, namely, to cause the victim pain by any means possible. Defendant argues the
trial court’s distinction between his intent to cause physical harm and his intent to instill
fear or mental torment was too narrowly drawn. We disagree, and conclude the trial
court’s findings are supported by substantial evidence.
Section 654, subdivision (a) provides in pertinent part: “An act or omission that is
punishable in different ways by different provisions of law shall be punished under the
provision that provides for the longest potential term of imprisonment, but in no case
shall the act or omission be punished under more than one provision.” Section 654
applies not only where there was one act in the ordinary sense, but also where there was a
course of conduct that violated more than one statute but nevertheless constituted an
indivisible transaction. (People v. Perez (1979)
23 Cal.3d 545
, 551.)
“Whether a course of conduct is divisible and therefore gives rise to more than one
act within the meaning of section 654 depends on the ‘intent and objective’ of the actor.
[Citation.] If all of the offenses are incident to one objective, the court may punish the
defendant for any one of the offenses, but not more than one. [Citation.] If, however, the
defendant had multiple or simultaneous objectives, independent of and not merely
incidental to each other, the defendant may be punished for each violation committed in
pursuit of each objective even though the violations share common acts or were parts of
5
an otherwise indivisible course of conduct. [Citation.]” (People v. Cleveland (2001)
87 Cal.App.4th 263
, 267-268.)
“Whether section 654 applies in a given case is a question of fact for the trial
court, which is vested with broad latitude in making its determination. [Citations.] Its
findings will not be reversed on appeal if there is any substantial evidence to support
them. [Citations.] We review the trial court’s determination in the light most favorable
to the respondent and presume the existence of every fact the trial court could reasonably
deduce from the evidence. [Citation.]” (People v. Jones (2002)
103 Cal.App.4th 1139
,
1143.)
The record here supports the trial court’s finding that the assault with the mop
handle and the numerous threats involved multiple objectives. “[M]entally or
emotionally terrorizing the victim by means of threats is an objective separate from the
intent to cause extreme physical pain.” (People v. Mejia (2017)
9 Cal.App.5th 1036
,
1047.) The evidence showed that the beating with the mop handle that constituted count
two was a relatively brief and discrete physical act within a lengthy period of sustained
abusive conduct. In beating the victim, defendant intended to inflict physical pain and
suffering on her, which he did. However, in threatening to kill the victim multiple times
and in multiple ways--which did not specifically include beating her with the mop
handle--defendant intended to impose extended mental anguish. Indeed, defendant stated
his express intent to torture the victim over an extended period of time. He said she was
going to die “today” and he was “trying to figure out how” to kill her, which prolonged
her terror. He said he wanted her to feel the “abandonment, pain and hurt, the emotional
roller coaster ride, the mental distress” that he had felt, thus stating his separate objective
and intent to cause her emotional pain by instilling fear.
Moreover, unlike defendant’s isolated assault with the mop handle, defendant’s
verbal threats were numerous, and made at different times and in different locations.
Separate violations against the same victim may be separately punished where there is
6
time for reflection between the acts. (See People v. Solis (2001)
90 Cal.App.4th 1002
,
1021-1022 [multiple punishment for arson and threats upheld where the defendant left
threatening messages, then burned apartment after victims fled]; People v. Surdi (1995)
35 Cal.App.4th 685
, 688-690 [offenses “separated by considerable periods of time during
which reflection was possible”].) Here, defendant threatened the victim in her home, in
the car, and in the park, over a period of hours.
Defendant’s threats were also varied in nature. He did not threaten to kill the
victim by the same method as the beating. (Cf. People v. Louie (2012)
203 Cal.App.4th 388
, 399 [single act of threatening the victim was the method employed to attain the
objective of dissuading a witness; therefore, defendant could not be punished for both
criminal threats and dissuading a witness based on a single act].) He referenced choosing
between choking, strangling, and shooting her, but not beating her to death.
Finally, prohibiting multiple punishments under these circumstances would not
further the purpose of section 654, which “is to ensure that a defendant’s punishment will
be commensurate with his culpability.” (People v. Correa (2012)
54 Cal.4th 331
, 341.)
Here, imposing and executing the consecutive sentence for making numerous threats over
an extended period of time is consistent with the purpose of section 654.
Because defendant committed multiple and divisible acts with distinct objectives,
substantial evidence supports the trial court’s decision to decline to apply section 654 to
count five. (See, e.g., People v. Mejia, supra, 9 Cal.App.5th at 1047 [a reasonable trier of
fact could conclude that the criminal threats were in furtherance of a separate criminal
objective than torture, even if, in part, the threats were intended to break the victim down
emotionally and to discourage her from attempting to flee]; People v. Phan (1993)
14 Cal.App.4th 1453
, 1466 [the defendant was properly sentenced under section 654 on
both robbery of mother and threat to cut off her son’s hand if she did not give more
money].)
It follows that defendant’s cursory due process claim fails as well.
7
DISPOSITION
The judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Mauro, Acting P. J.
/s/
Krause, J.
8 |
4,669,328 | 2021-03-18 23:02:10.571431+00 | null | https://www.courts.ca.gov/opinions/nonpub/B298439.PDF | Filed 3/18/21 P. v. Joe CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B298439
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA240172)
v.
WARDELL JOE,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Ronald S. Coen, Judge. Affirmed as modified.
Tracy J. Dressner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and David E. Madeo,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
This is the fourth time Wardell Joe has been before this
court. The last time Joe was before us, we remanded the matter
for the trial court to consider whether to strike a firearm
enhancement under then newly-enacted Senate Bill No. 620 and
to hold a hearing under People v. Franklin (2016)
63 Cal.4th 261
.
On remand, the trial court declined to strike the firearm
enhancement. Joe therefore appeals again. He contends that the
trial court abused its discretion by refusing to hold the Franklin
hearing before or with the motion to strike the firearm
enhancement and by denying the motion. He also contends the
trial court erred by not considering his ability to pay the
restitution fine and by imposing an unauthorized fee. We correct
a sentencing error but otherwise affirm the orders.
BACKGROUND
I. The earlier proceedings
Joe’s history in this court began with his 2004 conviction of
first degree murder with a true finding on a special circumstance
(Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(17); count 1), and
two counts of robbery (§ 211; counts 2 & 3). The jury also found
true principal gun-use allegations (§ 12022.53, subds. (c), (d),
(e)(1); counts 1, 2 & 3) and gang allegations (§ 186.22, subd.
(b)(1); counts 1 & 3). Joe’s conviction arose out of the armed
robbery of a market by Joe and seven accomplices, during which
an accomplice shot and killed a security guard. Six of those
involved were gang members, including Joe. Joe was at a
meeting to plan the robbery and he was a getaway driver. He
1 Allfurther statutory references are to the Penal Code
unless otherwise indicated.
2
was not present when the security guard was shot. The trial
court sentenced Joe to life without the possibility of parole plus
25 years to life in prison. On appeal, we corrected a sentencing
error but otherwise affirmed the judgment of conviction. (People
v. Bridges (Jan. 30, 2006, B176263) [nonpub. opn.].)
The California Supreme Court subsequently decided People
v. Banks (2015)
61 Cal.4th 788
and People v. Clark (2016)
63 Cal.4th 522
. Those cases clarified who can be a “major
participant” who acts with reckless indifference to life as
provided in the special circumstance statute, section 190.2,
subdivision (d). Joe petitioned for relief under Banks and Clark,
and we found there was insufficient evidence to support the
special circumstance finding. (In re Joe (Sept. 15, 2016, B275593)
[nonpub. opn.].) Our decision concluded that although Joe was at
a meeting to plan the robbery, waited nearby while his
accomplices robbed the market, and drove a getaway car, there
was no other evidence about his involvement in the crimes to
establish he was a major participant or had the requisite mens
rea. Further, there was evidence from which it could be inferred
that shooting the security guard was not part of the plan. We
therefore granted Joe’s petition and remanded the matter for
resentencing.
On remand, the trial court resentenced Joe to a
determinate term of five years and an indeterminate term of 50
years to life, which included a term of 25 years to life for a
firearm enhancement under section 12022.53, subdivisions (d)
and (e)(1)). The trial court imposed and stayed sentences on
remaining enhancements.
Joe appealed again, this time contending he was entitled to
resentencing under Senate Bill No. 620 and to a hearing under
3
People v. Franklin, supra,
63 Cal.4th 261
, which held a youth
offender is entitled to create a record of factors that may be
relevant to an eventual youth offender parole hearing under
section 3051. We agreed with those contentions, corrected
sentencing errors, and accordingly remanded the matter. (People
v. Joe (Apr. 19, 2018, B282478) [nonpub. opn.].)
II. Proceedings giving rise to this appeal
At a November 2018 hearing following remand, Joe’s
counsel represented that he was still gathering materials for the
Franklin hearing. At that point, counsel had a thousand pages of
probation documents and an expert was developing a psycho-
social review of Joe. In counsel’s opinion, those materials would
be relevant to whether the firearm enhancement should be
stricken. The court granted counsel’s request for a continuance.
At the continued hearing in January 2019, Joe asked for a
further 60-day continuance, as counsel was still gathering
documents, had requested prison mental health and education
records, and was awaiting expert reports. Counsel again
asserted his belief that Franklin materials were relevant to the
motion to strike the firearm enhancement. The trial court
continued the matter.
By the time of the continued hearing on April 4, 2019, Joe
had filed a motion to continue the hearing again. The trial court
noted that it now had pending the Franklin hearing, the motion
to strike the firearm enhancement, and a section 1170.95 petition
4
that Joe had recently filed.2 With respect to the section 1170.95
petition, the trial court acknowledged the significant likelihood
the murder conviction would “go away” since this court had
reversed the special circumstance finding. In that event, and if
the court granted the motion to strike the firearm enhancement,
the Franklin hearing would be moot. The trial court therefore
granted a short continuance to hear the firearm enhancement
issue but stayed the Franklin hearing. Over defense counsel’s
objection that information gathered for the Franklin hearing was
relevant to the firearm enhancement issue, the trial court
reiterated that it would schedule the Franklin hearing only if it
did not strike the enhancement.
Several weeks later, on April 26, 2019, the trial court heard
the motion to strike the section 12022.53 firearm enhancement.3
In addition to argument from Joe’s counsel and the prosecutor,
several victims also provided statements to the court. Joe’s
counsel argued the trial court should consider that Joe was only
20 years old when he committed the crimes, as well as the
2 EffectiveJanuary 1, 2019, Senate Bill No. 1437 (2017–
2018 Reg. Sess.) amended the felony-murder rule and eliminated
the natural and probable consequences doctrine as it relates to
murder. Senate Bill No. 1437 added section 1170.95, which
prescribes the petitioning process by which defendants convicted
of murder under a now invalid theory can seek resentencing.
3 On January 1, 2019, Senate Bill No. 1393 became
effective, amending sections 667 and 1385 to allow a court to
exercise its discretion to strike or dismiss prior serious felony
enhancements. (Stats. 2018, ch. 1013, §§ 1–2.) The trial court
therefore indicated it would also consider whether to strike the
five-year prior (§ 667, subd. (a)).
5
attributes of youth, such as incomplete brain development and
lack of maturity. The trial court noted the factors it had to
consider were the same as those pertinent to a Romero4 motion.
Considering those factors, the trial court found the planning of
the crime was “extreme” and the level of sophistication “very,
very high.” Each participant in the crime had a role, and each
was “a soldier and member in [the] gang.” Also, when Joe
committed the current offense, he was on probation for assault
with a semiautomatic firearm. The trial court therefore found no
good cause to strike the enhancement. Following its ruling, the
trial court scheduled a hearing to address both Franklin issues
and the section 1170.95 petition.
At that hearing, the trial court granted the section 1170.95
petition, dismissed the murder count, and resentenced Joe to a
determinate term of six years plus 25 years to life (§ 12022.53,
subds. (d), (e)(1)). Over Joe’s objection that he had no ability to
pay fines and that a maximum fine would be excessive, the trial
court imposed a $10,000 restitution fine (§ 1202.4, subd. (b)(1)), a
$10,000 parole revocation fine, suspended (§ 1202.45), an $80
court security fee (§ 1465.8), and a $60 court facilities assessment
(Gov. Code, § 70373). The trial court further noted that Joe’s
counsel had filed exhibits and a brief, which were made part of
the record, for any eventual youth offender parole hearing.5
4 People v. Superior Court (Romero) (1996)
13 Cal.4th 497
(Romero).
5 Joe separately appealed the order denying his motion to
strike the firearm enhancement and the resentencing order. We
consolidated the appeals.
6
DISCUSSION
I. The trial court did not abuse its discretion in denying Joe’s
request to continue the motion to strike the firearm
enhancement, or in denying the motion
Joe contends that the trial court abused its discretion by
refusing to hold the Franklin hearing either before or at the same
time as the motion to strike the firearm enhancement and,
further, by refusing to strike the enhancement. We disagree.
Senate Bill No. 620 amended section 12022.53, subdivision
(h), to give trial courts discretion to strike firearm enhancements
in the interest of justice under section 1385.6 As section
12022.53, subdivision (h), rests on the same “animating authority
underlying Romero”—i.e., section 1385—a trial court is required
to weigh similar considerations in deciding whether to strike a
firearm enhancement. (People v. Rocha (2019)
32 Cal.App.5th 352
, 359.) Those considerations include the defendant’s rights,
society’s interests, and individualized considerations pertaining
to the defendant and his offenses and background. (Ibid.; see
generally Romero,
supra,
13 Cal.4th at p. 531; People v. Williams
(1998)
17 Cal.4th 148
, 161.)
We review a trial court’s decision regarding striking a
sentencing allegation for abuse of discretion. (People v. Carmony
(2004)
33 Cal.4th 367
, 373–374.) Where a statute expressly vests
discretionary power in trial courts, a ruling will not be disturbed
except on a showing that the trial court exercised its discretion in
an arbitrary, capricious or patently absurd manner that resulted
6 Section 12022.5 was similarly amended.
7
in a manifest miscarriage of justice. (People v. Jordan (1986)
42 Cal.3d 308
, 316.)
Here, Joe argues that the trial court abused its discretion
by refusing to continue the motion to strike the firearm
enhancement to a time when he had gathered all materials for
the Franklin hearing. To support his argument, Joe cites People
v. Woods (2018)
19 Cal.App.5th 1080
. In that case, the court
remanded the matter to the trial court to exercise its discretion
under section 12022.53, subdivision (h). (Woods, at p. 1091,
fn. 3.) Although the court found that the defendant was not also
entitled to a Franklin hearing on remand, the court noted its
conclusion did not preclude the trial court from supplementing
the record for any eventual youth offender parole hearing.
(Woods, at p. 1091, fn. 3.) The court observed, “Indeed, it may
well be that information offered to the trial court to assist in its
determination of whether to exercise its discretion to strike the
firearm enhancement will be the same sort of information that
would be offered under a Franklin remand in any event.” (Ibid.)
We agree with the Woods court’s observation that
information gathered for a Franklin hearing might be the same
sort of information a trial court may consider in its decision
whether to strike a firearm enhancement. However, Woods did
not conclude that a trial court must hold a Franklin hearing
before deciding whether to strike an enhancement, and Joe has
cited no other authority for that proposition. Indeed, the rule
concerning motions to strike a firearm enhancement is clear: a
trial court must consider relevant factors such as the defendant’s
rights, society’s interests, and individualized considerations
pertaining to the defendant and his or her offenses and
8
background. (See, e.g., People v. Rocha, supra, 32 Cal.App.5th at
p. 359; People v. Williams,
supra,
17 Cal.4th at p. 161.)
Here, the trial court considered these factors. As for the
nature of the current offense, the trial court found the crime was
planned and sophisticated, involving eight people and multiple
getaway cars, one of which Joe drove. Contrary to Joe’s
assertion, this finding was not at odds with our opinion reversing
the special circumstance finding. In that opinion, we referred to
evidence suggesting that shooting the security guard was not
part of the plan. But, as our opinion also summarized, Joe was at
a meeting to plan the robbery and was one of eight people
involved in the crime. (In re Joe, supra, B275593.) Even if
shooting the security guard was not part of the original plan, that
does not undercut the significant coordination and planning that
went into the armed robbery.
As for Joe’s background, the trial court noted that he
committed the current offense while on probation for assault with
a firearm. Joe also had six sustained juvenile petitions.
Moreover, the trial court considered individualized information
about Joe. It expressly stated it had considered probation reports
prepared for hearings in 2004 and 2017 and had read the moving
and opposing papers, which included an additional probation
report prepared for a 1997 hearing and a social worker’s report.
Joe, however, asserts the trial court ignored his argument
and circumstances in mitigation. He argued below that the
firearm enhancement should be stricken because of his youth and
difficult circumstances when he committed the crimes, that he
was not as culpable as his accomplices, and he was not a major
9
participant who acted with reckless indifference to human life.7
Counsel also argued that the passage of Senate Bill Nos. 620 and
1437 demonstrated the law was moving away from vicarious
liability for felony murderers, which, he contended, was the sole
hook for the firearm enhancement here since Joe was not the
actual shooter. Yet, Joe cites no authority indicating the trial
court was required to explicitly address all of his arguments, or
that the court erred in failing to explain its reasoning in more
detail. Rather, a judgment or order challenged on appeal is
presumed correct, and it is the appellant’s burden to
affirmatively demonstrate error. (People v. Sanghera (2006)
139 Cal.App.4th 1567
, 1573.)
Further, to the extent Joe suggests the trial court could not
have sufficiently considered any mitigating circumstances
because it did not yet have the information gathered for the
Franklin hearing, we disagree. By the time the trial court heard
the motion to strike the firearm enhancement, Joe’s counsel had
spent months accumulating information, had gathered thousands
of pages of probation reports, and had engaged experts to
evaluate Joe. Joe attached a four-page social worker’s report to
his motion to dismiss the firearm enhancement.8 The report
detailed Joe’s background, including that his mother was
7 The prosecutor acknowledged that Joe had a “tough life”
and lacked advantages, but disagreed that those factors
mitigated in favor of striking the enhancement when Joe did not
avail himself of opportunities to change.
8Counsel later submitted for the Franklin hearing a 17-
page report from the same social worker. This report included
information from interviews with Joe’s family members.
10
addicted to drugs and that his alcoholic father was emotionally
abusive and rejected Joe. The report identified inadequate
parenting as the most powerful predictor of early antisocial
behavior. According to the report, Joe began to exhibit such
behavior in elementary school and to self-medicate with
marijuana and alcohol. Eventually, he found support and
acceptance with neighborhood gang members. Notwithstanding
this troubled upbringing, Joe disassociated with gangs, had few
serious rules violations while in prison, and did not present
behavioral problems during his 20 years in prison. Thus, while
the social worker’s final 17-page report provided a more detailed
picture of Joe’s childhood and upbringing, the essential aspects of
that report were before the trial court when it ruled on the
motion.
As for Joe’s culpability compared to his accomplices, and
this court’s finding that the evidence was insufficient to establish
he was a major participant who acted with reckless indifference
to human life (In re Joe, supra, B275593), the trial court was
unpersuaded by counsel’s arguments. The trial court correctly
noted that the standard for determining aider and abettor
liability for the purposes of the special circumstance was different
from the one governing whether to strike a firearm enhancement
and, significantly, the latter includes considering the defendant’s
criminal history. In any event, as we have said, the trial court
was fully aware of the facts surrounding Joe’s culpability.
Joe also attributes the trial court’s refusal to strike the
firearm enhancement to a personal disdain for Senate Bill
No. 1437. Joe speculates that the trial court did not strike the
firearm enhancement because it sought to compensate for likely
needing to vacate the murder conviction under section 1170.95.
11
Notwithstanding the trial judge’s statements or opinions about
Senate Bill No. 1437, we see nothing in the record indicating any
such opinions clouded the court’s impartiality or affected the
exercise of discretion as to the motion to strike the enhancement.
As described above, the record reflects the trial court reasonably
considered the relevant factors in ruling on the motion.
Moreover, the trial court acknowledged that if appellate courts
upheld Senate Bill No. 1437’s constitutionality, the trial court
would likely grant Joe’s section 1170.95 petition—which is what
happened. The trial court granted the petition and dismissed the
murder count.
Finally, the trial court did not abuse its discretion by
refusing to continue the hearing on the firearm enhancement. A
continuance may only be granted for good cause (§ 1050,
subd. (e)), and trial courts have broad discretion to determine
whether good cause exists (People v. Alexander (2010)
49 Cal.4th 846
, 934). We review an order denying a motion to continue for
an abuse of discretion. (Id. at p. 935.) Here, the trial court
granted Joe three continuances. The trial court’s rationale for
refusing to grant a fourth one was sound: if it struck the firearm
enhancement and granted the section 1170.95 petition, the
Franklin hearing would be moot. Trial courts have inherent
authority to manage their calendars and to control litigation.
(Rutherford v. Owens-Illinois, Inc. (1997)
16 Cal.4th 953
, 967.)
The record does not show that the trial court sacrificed any due
process right Joe had to a full and fair opportunity to present
information relevant to the motion to strike the firearm
enhancement on the altar of judicial economy. We therefore find
12
that the trial court did not abuse its discretion, much less violate
Joe’s due process rights, by denying the motion.
II. The trial court did not err in overruling Joe’s objection to
the restitution fine
After the trial court imposed the $10,000 restitution fine
under section 1202.4, subdivision (b)(1), Joe asked the trial court
to impose a lesser amount in light of his indigence. The trial
court said Joe could pay the fine from his prison wages and then
cited cases criticizing People v. Dueñas (2019)
30 Cal.App.5th 1157
, which held that imposing a minimum restitution fine
without determining the defendant’s ability to pay violates due
process. Joe repeated that he lacked the ability to pay the fine
and that it was excessive.9 The trial court noted and overruled
the objection.
As Joe acknowledges, Dueñas is not the issue before us.
Where, as here, a trial court imposes a restitution fine in an
amount greater than the statutory minimum, a defendant has a
right to object, per section 1202.4, subdivisions (c) and (d), that he
lacks the ability to pay. In that case, a trial court shall consider
any relevant factors, including “the defendant’s inability to pay,
the seriousness and gravity of the offense and the circumstances
of its commission, any economic gain derived by the defendant as
a result of the crime, the extent to which any other person
suffered losses as a result of the crime, and the number of victims
involved in the crime. Those losses may include pecuniary losses
to the victim or his or her dependents as well as intangible losses,
such as psychological harm caused by the crime. Consideration
9 Joe does not argue on appeal that the fine was excessive.
13
of a defendant’s inability to pay may include his or her future
earning capacity.” (§ 1202.4, subd. (d).) It also includes
considering a defendant’s present ability to pay by virtue of
prison wages. (People v. Aviles (2019)
39 Cal.App.5th 1055
,
1076.) Qualifying for court-appointed counsel alone does not
establish an inability to pay fines and fees but may be a factor.
(Ibid.) Although the court must consider relevant factors, a
separate hearing is not required, and the court need not make
express findings as to the factors bearing on the amount of the
fine. (§ 1202.4, subd. (d).) The defendant bears the burden of
demonstrating an inability to pay. (Ibid.; People v. Chhoun
(2021)
11 Cal.5th 1
, 55.)
On appeal, Joe argues he has no burden to show his
inability to pay fines and fees because the trial court never held a
hearing on that issue. That is inaccurate. Joe raised the issue,
and the trial court considered but rejected it at the sentencing
hearing. The trial court had no obligation to hold a separate
hearing. (§ 1202.4, subd. (d).) And, other than Joe’s bare
objection he was indigent, Joe introduced no evidence about his
ability to pay or otherwise made an offer of proof. (See, e.g.,
People v. Gamache (2010)
48 Cal.4th 347
, 409 [defendant merely
cited impending incarceration].) Nothing in the record suggests
the trial court failed to consider the relevant factors. In fact, the
trial court had recently ruled on Joe’s motion to strike the
firearm enhancement and so was familiar with facts relevant to
Joe’s ability to pay. We therefore find that the trial court did not
abuse its discretion.
III. Sentencing error and corrections to abstract of judgment
The trial court imposed a $30 court facilities assessment
under Government Code section 70373 on each count for a total of
14
$60. However, that statute does not apply to convictions
predating January 1, 2009, the date the statute became effective.
(People v. Davis (2010)
185 Cal.App.4th 998
, 1000.) Joe was
convicted of his crimes in 2004, before Government Code section
70373 became effective. Therefore, the assessment must be
stricken.
The trial court sentenced Joe to one year on count 2, which
was one-third the midterm. However, the abstract of judgment
incorrectly states he was sentenced to the upper term. The
abstract of judgment also incorrectly states that Joe was awarded
only 11 days of custody credits when he was in fact awarded 111
days. These errors must be corrected.
15
DISPOSITION
The $60 assessment imposed under Government Code
section 70373 is stricken. The abstract of judgment shall be
corrected to reflect that the trial court imposed one-third the
midterm on count 2 and awarded 111 days of custody credits.
The trial court is directed to modify the abstract of judgment and
to forward the modified abstract of judgment to the Department
of Corrections and Rehabilitation. The orders are otherwise
affirmed.
NOT TO BE PUBLISHED.
ADAMS, J.*
We concur:
EDMON, P. J.
LAVIN, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
16 |
4,489,432 | 2020-01-17 22:01:50.711323+00 | Marquette | null | *1402OPINION.
Marquette:
The only question involved herein is whether the petitioner was, during the year 1923, an employee of the State of Kansas. The respondent concedes that if he was an employee his salary was exempt from taxation. The respondent contends, however, that the petitioner was not an employee, but was an independent contractor.
In the case of John E. Mathews, 8 B. T. A. 209; affd. 29 Fed. (2d) 892, the facts were that on January 2, 1923, the petitioner, a practicing attorney of Jacksonville, Fla., was appointed county attorney for Duval County by the board of commissioners of that county for a term of two years at a salary of $200 per month. His duties were to furnish legal advice to the board of county commissioners, draw deeds and contracts, orders and resolutions, and defend the county in any action brought against it. The petitioner while serving as county attorney maintained a separate law office, but did not allow his private practice to interfere with the duties he owed the county. The commissioners did not instruct him how he should perform his legal work, and they had no special control over the hours he was employed or engaged in practice. In holding that the petitioner was an employee of the State of Florida, this Board said:
The only real question before us is whether the petitioner was an employee of the State of Florida or of a political subdivision thereof within the meaning of section 1211 of the Revenue Act of 1926.
A situation similar to the instant case was before the United States Supreme Court in the case of Metcalf & Eddy v. Mitchell, 269 U. S. 514. The question there was as to whether certain consulting engineers engaged to advise States and subdivisions with reference to water and sewerage projects not required to take any oath or forego other employment as officers or employees of the State or subdivision within the meaning of section 201 (a) of the Revenue Act of 1917, which contains a provision for exemption from tax as follows:
“ This title shall apply to all trades or businesses of whatever description, whether continuously carried on or not, except—
“ (a) In the case of officers and employees under the United States, or any State, Territory, or the District of Columbia, or any local subdivision thereof, the compensation or fees received by them as such officers or employees.”
The court held that in the circumstances of the case the petitioners were not officers of any State. The court then stated:
“ Nor do the facts stated in the bill of exceptions establish that the plaintiffs were ‘ employees ’ within the meaning of the statute. So far as appears, *1403they were in the position of independent contractors. The record does not reveal to what extent, if at all, their services were subject to the direction or control of the public boards or officers engaging them. In each instance the performance of their contract involved the use of judgment and discretion on their part and they were required to use their best professional skill to bring about the desired result. This permitted to them liberty of action which excludes the idea that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor. Chicago, Rock Island & Pacific Ry. Co. v. Bond, 240 U. S. 449, 456, 36 S. Ct. 403, 60 L. Ed. 735; Standard Oil Co. v. Anderson, 212 U. S. 215, 227, 29 S. Ct. 252, 53 L. Ed. 480. And see Casement v. Brown, 148 U. S. 615, 13 S. Ct. 672, 37 L. Ed. 582; Singer Manufacturing Co. v. Rahn, 132 U. S., 518, 523, 10 S. Ct. 175, 33 L. Ed. 440.”
The facts in this case are substantially different from those which obtained in the case of Metcalf & Eddy v. Mitchell, supra. Here the petitioner was employed for a definite period at a definite monthly salary. He was required to attend all meetings of the Board of County Commissioners; to give legal advice concerning all routine matters coming before the Board; to attend to all legal matters in connection with bond issues; and in general to do the legal work of the Board. He was under the direction of the Board during the entire taxable period and practically all of his energies during the year 1923 were devoted to the Board. We do not understand it to be the ruling of the Supreme Court that the relationship of employer and employee obtains only where the relationship of master and servant obtains and then only whenever the employer retains the right to direct the manner in which the business shall be done as well as the results to be accomplished, in other words, not only what shall be done, but how it shall be done. See Vane v. Newcombe, 132 U. S. 220. If this were so, a physician who might be employed by a railroad company to devote his entire activities to the company could not be an employee of the company because clearly in such a case the employer would not expect to tell the physician how his work should be done. A skilled laborer is no less an employee because he uses his skill in the performance of his work. The term “employee” should not in our opinion be restricted only to menials. The petitioner was in our opinion an employee of the Board of County Commissioners of Duval County, Florida, during the year 1923, within the meaning of section 1211 of the Revenue Act of 1926. Cf. Robert C. Gordon, 5 B. T. A. 1047; Emma B. Brunner, Executrix, 5 B. T. A. 1135; Fred B. Tibbetts, 6 B. T. A. 827.
In B. F. Martin, 12 B. T. A. 267, the petitioner devoted the greater part of his time to special legal work for the State of Mississippi, and was paid a per diem rate for the time he actually devoted to that work. The work was performed pursuant to an oral agreement between the petitioner and the attorney general, who had supervision and direction of the work. The employment was terminable by either party at any time. We held that the petitioner was an employee of the State of Mississippi and that the compensation received by him from the State was exempt from taxation. In that case it was said:
Metcalf and Eddy v. Mitchell, 269 U. S. 514 (1925), was an action brought by consulting engineers against a collector to recover money .paid under protest *1404as Income tax. Plaintiffs were professionally employed to advise States or subdivisions of States with reference to. proposed water supply and sewage disposal systems. They contended that the fees obtained for these services were exempt from Federal taxation. In each case the service was rendered in connection with a particular project for water supply or sewage disposal, and the compensation was paid in some instances on an annual basis, in others on a monthly or daily basis, and in still others on the basis of a gross sum for the whole service.
In holding that the plaintiffs were independent contractors, the court said:
“ The record does not reveal to what extent, if at all, their services were subject to the direction or control of the public boards or officers engaging them. In each instance the performance of their contract involved the use of judgment and discretion on their part and they were required to use their best professional skill to bring about the desired result. This permitted to them liberty of dction which excludes the idea of that control or right of control by the employer which characterizes the relation of employer and employee and differentiates the employee or servant from the independent contractor. * *
Much the same thought is incorporated in Solicitor’s Opinion 122, quoted in the notice of deficiency sent to the petitioner as follows:
“ An employee is one whose duties consist in the rendition of prescribed services and not the accomplishment of specific objects, and whose services are continuous, not occasional or temporary.”
In the instant case the uncontradicted testimony is that the petitioner was to perform his services under the supervision and control of the Attorney General. No specified task was undertaken; no certain result was to be accomplished. The attorney general had the power not only to direct what should be done but how it should be done. The employment was continuous and the duties no different from those of any other attorney employed in the office of the attorney general except that they did not require all of the petitioner’s time. The work which petitioner performed was, in fact, in charge of the attorney general, who could direct it as he pleased. It is our opinion that this petitioner was not serving the State as an independent contractor, but rather in the capacity of a servant or employee and that his income from the State was not subject to the Federal income tax.
And to the same effect are P. Frank Durkin, 4 B. T. A. 743; H. W. Byers, 8 B. T. A. 1191; and W. J. Howard v. Commissioner of Internal Revenue, 29 Fed. (2d) 895.
The respondent cites a number of cases in support of his contention that the petitioner was not an employee of the State of Kansas. These cases, however, are essentially different in their facts from the instant proceeding, and we do not consider them in point.
We are of the opinion that the facts in this case, which need not be restated here, bring it squarely within the scope of the decisions in John E. Mathews; B. F. Martin; H. W. Byers; and W. J. Howard, supra, and that the petitioner was, during the year 1923, an employee of the State of Kansas, and that the compensation received by him from that State is exempt from the Federal income tax.
Judgment will he entered under Rule 50. |
4,489,433 | 2020-01-17 22:01:50.744764+00 | Marquette | null | *1408OPINION.
Marquette :
The parties hereto have stipulated that Elkins, Morris & Co. purchased all of the capital stock of the Parish Manufacturing Co. on June 20, 1922, and was the owner thereof from that date until the corporation was liquidated. The respondent in his answer filed herein admits that Elkins, Morris & Co. owned all of the said capital stock, but he now takes the position that the transaction was handled on the brokerage basis and that there was no sale of the stock to the partnership. The evidence shows that the partnership in acquiring the stock of the Parish Manufacturing Co., took into consideration the amount of brokerage fees and commissions it could earn on the subsequent sale of the assets of the company, as well as their profit thereon, but it does not show that there was not a bona fide purchase and sale, and we see no reason for assuming that the stipulation and the admissions of the answer do not set forth the facts of the transaction.
The issue raised by the pleadings and the stipulation of facts is as to the proper method of taxing the amounts received by the partnership upon the distribution of the assets of the Parish Manufacturing Co. The petitioners contend that the amounts distributed, in so far as they represented earnings or profits of the corporation accumulated since February 28, 1913, are dividends taxable only at surtax rates, and that the remainder of the distributions should be applied against the purchase price of the stock and gain or loss determined therefrom. The respondent says that the entire amount distributed should be applied against the cost of the stock and the excess over cost, if any, taxed at the surtax rates.
The transaction in question occurred in 1922, and is governed by the provisions of the Revenue Act of 1921, the parts of which pertinent here, are as follows:
Sec. 201. (a) That the term “dividend” when used in this title (except in paragraph (10) of subdivision (a) of section 234 and paragraph (4) of subdivision (a) of section 245), means any distribution made by a corporation to its shareholders or members, whether in cash or in other property, out of its earnings or profits accumulated since February 28, 1913, except a distribution made by a personal service corporation out of earnings or profits accumulated since December 31, 1917, and prior to January 1, 1922.
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*1409(c) Any distribution (whether in cash or other property) made by a corporation to its shareholders or members otherwise than out of (1) earnings or profits accumulated since February 28, 1913, or (2) earnings or profits accumulated or increase in value of property accrued prior to March 1, 1913, shall be applied against and reduce the basis provided in section 202 for the purpose of ascertaining the gain derived or the loss sustained from the sale or other disposition of the stock or shares by the distributee.
* ■ * * * * * *
Sec. 202. (a) That the basis for ascertaining the gain derived or loss sustained from a sale or other disposition of property, real, personal, or mixed, acquired after February 28, 1913, shall be the cost of such property * ⅜ *.
In Frank D. Darrow, 8 B. T. A. 276, this Board held that the term “ dividend,” as defined in section 201 of the Revenue Act of 1921, includes distributions in liquidation of a corporation to the extent of the earnings or profits accumulated since February 28, 1913, contained therein, and to the extent of these earnings such distributions are taxable as dividends, subject to the surtax and exempt from the normal tax. In that case we said:
When we come to the Revenue Act of 1921 we find “ dividends ” included in taxable income and defined in section 201 (a) substantially as in prior Acts, as—
* * * Any distribution made by a corporation to its shareholders or members, whether in cash or in other property, out of its earnings or profits accumulait ■% since February 28, 1913 * ⅜ *.
But subdivision (c) as carried in the 1918 Act is omitted and no specific provision for liquidating dividends is made, except the negative one contained in the new subdivision (c) set forth above. Oongress dropped the distinction between liquidating dividends and dividends as defined in section 201 (a) which it has recognized in the 1918 Act, and declared anew its intent to tax as dividends all distributions of earnings accumulated since February 28, 1913, whether the same be made in liquidation or otherwise, as was the case under the 1916 and 1917 Acts. This clearly appears from the provision of the new subdivision (e) that “ any distribution * * * made * * * otherwise than out of (1) earnings or profits accumulated since February 28, 1913, * * * shall be applied against and reduce the basis provided in section 202” for determining gain or loss on the sale or other disposition of property. Earnings or profits accumulated since February 28, 1913, distributed in liquidation are to be excluded from the computation of gain derived or loss sustained from such distribution, and are to be taxed as other dividends, regardless of whether there is a gain derived or loss sustained from such distribution. The intent of Oongress to remove the distinction between liquidating dividends and other dividends, and to make its definition of the term in section 201 (a) comprehensive and all-inclusive, so far as earnings or profits accumulated since February 2S, 1913, are concerned, appears even more clearly from the history of the 1921 Act in process of enactment. The House Bill provided, in section 201 (c) for the treatment of liquidating dividends in the identical language of the 1918 Act. The Senate amendment eliminated the provision entirely and substituted as subdivision (c) the provision as to stock dividends appearing as subdivision (d) in the Act as passed. The House accepted the amendment with an amendment which appears as subdivision (e) in the Act as finally passed. The statement of the House Managers from the Committee on Conference relative to this provision, is:
*1410The House Bill provided that amounts distributed in liquidation of a corporation shall be treated as in part or in full payment in exchange for stock or shares, and any gain or profit realized thereby shall be taxed to the distributee as other gains or profits. The Senate amendment strikes out this provision. The House recedes with an amendment, * * * [Referred to above]
There would seem to be no doubt that Congress intended its definition of “ dividends ” to include liquidating dividends to the extent of earnings accumulated since February 28, 1918.
It is our conclusion that the term “ dividends ” as defined in section 201 of the Revenue Act of 1921, includes distributions in liquidation to the extent of the earnings or profits accumulated since February 28, 1913, contained therein, and that to the extent of those earnings such distributions are taxable as dividends, subject to the surtax and exempt from the normal tax. * * *
The ruling in the Darrow case was approved and followed in Philetus W. Gates, 9 B. T. A. 1133.
In the light of the decisions cited it follows, and we so hold, that the distributions involved herein, in so far as they represented earnings or profits of the Parish Manufacturing Co. accumulated since February 28, 1913, constituted dividends within the meaning of section 201 of the Revenue Act of 1921, and are subject to the surtax and exempt from the normal tax, and that the remainder of such distributions should be used as the basis for computing gain or loss under section 202 of said Act. It appears that the distributions have been properly treated by the partnership and the petitioners.
Judgment will be entered wider Bule 50. |
4,489,439 | 2020-01-17 22:01:50.936166+00 | Siefkin | null | *1425OPINION.
Siefkin :
The petitioners contend that the instrument set forth in our findings of fact created a partnership consisting of themselves and their two children.
At 30 Cyc. 349 there is this statement with regard to partnerships:
Tbe definition of a partnership which seems to be most accurate and comprehensive is that of Chancellor Kent, as follows: “A contract of tro or more competent persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions.
At page 357 of the same volume it is stated:
Tbe mutual assent, required of parties to every enforceable contract, is neces- \ sary to tbe formation of a partnership. * * *
The above quotations are amply supported by authority.
The children were of tender years at the time the instrument in question was executed and were not parties to it. They were too young to be competent parties to a contract of partnership, one being K eight and the other four. We are forced to the conclusion that no partnership existed.
The cases cited by the petitioners are distinguishable from the instant case in that in those cases the agreements were entered into by all of the parties alleged to be partners. We turn then to a consideration of whether the instrument in question created a trust in favor of the children.
At 39 Cyc. 57 there is this statement:
While it is essential to the creation of a trust that there be an explicit declaration of trust, or circumstances which show beyond reasonable doubt that a trust was intended to be created, no formal, technical, or particular words are necessary, but it is sufficient if an intention to create a trust and the subject-matter, purpose, and beneficiary are stated with reasonable certainty.
*1426The above quotation is amply supported by authority.
It is our view of the instrument (and this view is reinforced by the testimony of the petitioners and the nature of the business conducted by them), that it was no more than an attempted assignment of future income. The children were of tender years and did not and could not contribute services of value during the years in question. No profits could be distributed until earned, and, since we have held that the petitioners were the only partners, those profits when earned, inured to them, and them only. That they agreed to hold a portion for the children does not constitute such portion nontaxable to the petitioners. The situation is similar to that considered in Ormsby McKnight Mitchel, 1 B. T. A. 143, and Mitchel v. Bowers, 9 Fed. (2d) 414; 15 Fed. (2d) 287; 273 U. S. 759. We conclude that the respondent’s action was proper.
Judgment will be entered for the respondent. |
4,638,808 | 2020-12-02 17:02:27.390213+00 | null | https://www.3dca.flcourts.org/pre_opinion_content_download/692469 | Third District Court of Appeal
State of Florida
Opinion filed December 2, 2020.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1461
Lower Tribunal No. 90-354C
________________
Jermaine Clarington,
Petitioner,
vs.
The State of Florida,
Respondent.
A Case of Original Jurisdiction – Prohibition.
Law Offices of Daniel J. Tibbitt, and Daniel Tibbitt, for petitioner.
Ashley Moody, Attorney General, and Jeffrey R. Geldens, Assistant Attorney
General, for respondent.
The Law Office of Jo Ann Palchak, P.A., and Jo Ann Palchak (Tampa); Carey
Haughwout, Public Defender for the Fifteenth Judicial Circuit, and Benjamin
Eisenberg (West Palm Beach), Assistant Public Defender; Black, Srebnick,
Kornspan & Stumpf, P.A., and Jackie Perczek; Ratzan & Faccidomo, LLC, and Jude
M. Faccidomo, for the National Association of Criminal Defense Lawyers, the
Florida Association of Criminal Defense Lawyers, and the Florida Public Defender
Association, Inc., as amici curiae.
Before EMAS, C.J., and HENDON and GORDO, JJ.
EMAS, C.J.
I. INTRODUCTION
Jermaine Clarington has filed a petition seeking a writ to prohibit the trial
court from conducting a remote probation violation hearing. This case involves the
convergence of a public health emergency of indeterminate duration and the Florida
Supreme Court’s approved use of audio-video technology by which courts have
largely been able to maintain a continuity of judicial operations and court
proceedings. The specific question presented is whether, in light of the current
circumstances and necessities resulting from the COVID-19 pandemic, the remote
conduct of a probation violation hearing by use of audio-video technology violates
the defendant’s rights under the Florida and United States Constitutions. 1
II. BACKGROUND
Clarington was placed on probation for first-degree murder in January 2018.
Although he was initially sentenced to life in prison without the possibility of parole
for this crime, 2 committed when he was fifteen years old, he was later resentenced,
pursuant to new sentencing legislation for juveniles, to a term of probation.
1
Clarington objected to the remote conduct of the probation violation hearing as
violative of his right to counsel, right to due process and right to confrontation under
the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution and Article I,
sections 9 and 16 of the Florida Constitution.
2
Clarington’s life sentence was imposed in 1992. He served approximately twenty-
five years in prison prior to his resentencing in 2018.
2
On June 9, 2020, an affidavit was filed by Clarington’s probation officer,
alleging Clarington (now forty-five years old) violated his probation by committing
three new criminal offenses, as well as by leaving his county of residence without
the consent of his probation officer and by failing to report monthly to his probation
officer. Should he be found in violation of his probation, Clarington faces a potential
life sentence. Clarington was taken into custody on the affidavit of violation of
probation and entered a denial to the allegations. He continues to be held in the
Miami-Dade County jail without bond.
In the meantime, and in the wake of the COVID-19 pandemic and resulting
public health emergency, the Florida Supreme Court issued several administrative
orders (and amendments thereto), establishing temporary requirements, benchmarks
and guidelines for the continuity of operations within the trial and appellate courts
of Florida. One such order—AOSC 20-23—amended most recently on October 2,
2020, provides: “All rules of procedure, court orders, and opinions applicable to
court proceedings that limit or prohibit the use of communication equipment for the
remote conduct of proceedings shall remain suspended.” 3
3
Further, section III.E.(1)-(2) of AOSC 20-23, (Amendment 7, October 2, 2020)
provides in pertinent part that “criminal jury selection and trial proceedings be
conducted in person” and that nonjury trials in ‘[c]riminal cases shall be conducted
remotely if the parties agree to such conduct or, if not, shall be conducted in person.
As for all other proceedings, section III.E.(3) of the administrative order provides:
3
At a status conference, the trial court determined the probation violation
hearing will be conducted remotely, using the Zoom platform. The defense objected
to conducting the probation violation hearing remotely, given that Clarington and
his counsel would be in separate locations, and indeed, all participants would be
participating from separate locations, and no one would be physically present in the
courtroom (except perhaps for the judge). Clarington asserted such a proceeding
would violate his constitutional rights to counsel, confrontation and due process.
Clarington agreed to remain in custody until such time as the probation violation
hearing could be safely conducted in person, with the participants physically present
in the courtroom.
All other trial court proceedings shall be conducted remotely unless a
judge determines that one of the following exceptions applies, in which
case the proceeding shall be conducted in person:
a. Remote conduct of the proceeding is inconsistent with the United
States or Florida Constitution, a statute, or a rule of court that has
not been suspended by administrative order; or
b. Remote conduct of the proceeding would be infeasible . . .
Chief judges shall take all necessary steps to ensure that the above-
listed proceedings are conducted to the fullest extent possible,
consistent with the guidance established in this section.
Thus, to the extent that rule 3.180 requires an in-court physical presence (and
by extension prohibit the remote proceeding contemplated here), AOSC 20-23
suspends application of that rule. See discussion infra at 7.
4
In its order overruling Clarington’s objections, the trial court indicated that
Clarington would have an opportunity to communicate with his counsel during the
course of the hearing by utilizing a breakout room during the proceeding, “whenever
it is requested.” The court scheduled the probation violation hearing by Zoom for
October 16, 2020. 4 This petition followed.
III. DISCUSSION AND ANALYSIS
The Right to Be Physically Present in the Courtroom
As a general proposition, “[c]riminal defendants have a due process right to
be physically present in all critical stages of trial.” Muhammad v. State,
782 So. 2d 343
, 351 (Fla. 2001). See also Kentucky v. Stincer,
482 U.S. 730
, 745 (1987)
(holding “a defendant is guaranteed the right to be present at any stage of the
criminal proceeding that is critical to its outcome if his presence would contribute to
the fairness of the procedure.”) Thus, in determining whether this proceeding
requires compliance with this constitutional mandate, a court must consider two
primary questions: (1) is the proceeding a “critical stage of trial” and (2) can this
requirement of “presence” be satisfied by a defendant appearing by some method
other than in-person physical presence, such as (in this case) a remote proceeding by
Zoom? Additionally, a court may need to address whether there are any exceptions
4
As a result of the filing of this petition and the briefing schedule, the hearing has
been reset for December 7, 2020.
5
to the general rule, which would allow for the conduct of certain proceedings in light
of compelling circumstances or necessities.
Applicability of Florida Rule of Criminal Procedure 3.180 to Probation
Violation Hearings
Florida’s Rules of Criminal Procedure shed some light on the questions we
must resolve. Rule 3.180, entitled “Presence of Defendant,” provides:
(a) Presence of Defendant. In all prosecutions for crime the defendant
shall be present:
(1) at first appearance;
(2) when a plea is made, unless a written plea of not guilty shall be
made in writing under the provisions of rule 3.170(a);
(3) at any pretrial conference, unless waived by the defendant in
writing;
(4) at the beginning of the trial during the examination, challenging,
impaneling, and swearing of the jury;
(5) at all proceedings before the court when the jury is present;
(6) when evidence is addressed to the court out of the presence of the
jury for the purpose of laying the foundation for the introduction of
evidence before the jury;
(7) at any view by the jury;
(8) at the rendition of the verdict; and
(9) at the pronouncement of judgment and the imposition of sentence.
(Emphasis added.)
Rule 3.180(b) further defines the term “presence”:
(b) Presence; Definition. Except as permitted by rule 3.130 relating to
first appearance hearings, 5 a defendant is present for purposes of
5
Florida Rule of Criminal Procedure 3.130(a), entitled “First Appearance,” provides
in pertinent part:
Except when previously released in a lawful manner, every arrested
person shall be taken before a judge, either in person or by electronic
6
this rule if the defendant is physically in attendance for the
courtroom proceeding, and has a meaningful opportunity to be
heard through counsel on the issues being discussed.
(Emphasis added.)
Florida Supreme Court’s Temporary Suspension of Rule 3.180
On its face, the term “presence,” as defined in rule 3.180(b), would reasonably
lead one to conclude that the conduct of a remote probation violation hearing in
which the judge, the attorneys, the defendant, and the witnesses are all in different
locations, is prohibited by this rule. However, probation violation hearings are not
expressly included within the scope of rule 3.180, which by its terms applies to
“prosecutions for crime.” Moreover, even if rule 3.180 were construed to include
probation violation hearings within its scope, the Florida Supreme Court has
temporarily suspended application of this rule in light of the public health emergency
created by COVID-19, by which the conduct of in-person proceedings could pose a
risk of exposure to, or transmission of, the novel coronavirus.
As of November 20, 2020, there were more than 209,000 confirmed cases of
COVID-19 in Miami-Dade County; more than 8,400 people hospitalized in Miami-
audiovisual device in the discretion of the court, within 24 hours of
arrest.
Thus, it can be seen that rule 3.180, adopted by the Florida Supreme Court in 1984,
recognizes that there are stages of a criminal proceeding (even those enumerated
within that very rule) that are authorized to be conducted in a remote or virtual
manner.
7
Dade County for COVID-19; and more than 3,700 deaths in Miami-Dade County
from COVID-19. 6 The statewide figures are even more daunting: more than 914,000
confirmed cases of COVID-19; more than 52,000 hospitalizations, and more than
17,800 deaths in Florida from COVID-19 as of November 20, 2020.
In light of the COVID-19 pandemic and the resulting public health
emergency, the Florida Supreme Court issued several administrative orders (and
amendments thereto) in an effort to provide temporary guidelines, benchmarks and
requirements for the continuity of operations within the trial and appellate courts.
See e.g., AOSC20-23, AOSC20-32, 7 outlining distinct phases and requirements for
court operations and establishing benchmarks which must be satisfied before a court
may move into the next phase of court operations.
One such order (AOSC20-23), amended October 2, 2020, provides: “All rules
of procedure, court orders, and opinions applicable to court proceedings that limit or
prohibit the use of communication equipment for the remote conduct of proceedings
shall remain suspended.” Further, AOSC 20-23, section III.E.(3) (Amendment 7,
6
This data can be found online on the State of Florida Department of Health’s
COVID-19 Data and Surveillance Dashboard, at Department of Health’s Dashboard,
https://experience.arcgis.com/experience/96dd742462124fa0b38ddedb9b25e429,
last accessed November 20, 2020.
7
The latest versions of these the Florida Supreme Court’s COVID-19 Emergency
Orders and Advisories can be found on the Florida Supreme Court’s website, at
https://www.floridasupremecourt.org/Emergency, last accessed November 20,
2020.
8
October 2, 2020) provides in pertinent part that, other than jury and nonjury trials
all other criminal trial proceedings “shall be conducted remotely unless a judge
determines that . . . remote conduct of the proceeding is inconsistent with the United
States or Florida Constitution . . . .”
Thus, to the extent that rule 3.180 could be construed to limit or prohibit the
remote probation violation hearing contemplated here, 8 AOSC 20-23 suspends
application of that rule. We therefore must determine whether the remote conduct
of a probation violation hearing would be inconsistent with the United States or
Florida Constitution.
Remote Conduct of A Probation Violation Hearing Does Not Violate
Clarington’s Constitutional Rights
The remaining question is whether, regardless of the applicability of rule
3.180 to probation violation hearings (and the temporary suspension of that rule by
the Florida Supreme Court pursuant to AOSC20-23), the remote conduct of a
probation violation hearing, in which the defendant is not physically present in the
8
Rule 3.180 does not expressly include probation violation hearings, but instead is
limited to pre-adjudicative and adjudicative proceedings (first appearance, entry of
plea, pretrial conference, trial and sentencing). A probation violation hearing, by
contrast, is a post-adjudicative, post-sentencing proceeding; by that, a defendant has
already been found to have violated the law (either by plea or trial) and has been
sentenced to a term of probation. As will be seen from the discussion infra, the
rights attendant to a violation of probation proceeding are not co-extensive with
those afforded an accused prior to a determination of guilt and (if found guilty)
imposition of sentence.
9
courtroom and each participant (including the defendant and his counsel) is at
separate locations, violates Clarington’s constitutional right of confrontation, due
process, or counsel. We conclude that in light of the nature of a probation violation
hearing and the circumstances posed by the current public health emergency, the
remote conduct of such a hearing does not violate probationer Clarington’s rights to
confrontation or due process. We decline at this procedural juncture to reach the
issue as it relates to the claimed violation of Clarington’s right to counsel, without
prejudice to Clarington raising such a claim, if appropriate, in a subsequent appeal.
The Flexible Nature of Due Process Rights
The concept of due process is not rigid or static, but flexible and dynamic. As
the United States Supreme Court observed in Morrissey v. Brewer,
408 U.S. 471
,
481 (1972), “due process is flexible and calls for such procedural protections as the
particular situation demands.” See also Mitchell v. W.T. Grant Co.,
416 U.S. 600
,
610 (1974) (noting: “The requirements of due process of law ‘are not technical, nor
is any particular form of procedure necessary.’ Due process of law guarantees ‘no
particular form of procedure; it protects substantial rights.’ ‘The very nature of due
process negates any concept of inflexible procedures universally applicable to every
imaginable situation.’”) (citations omitted); Caple v. Tuttle’s Design-Build, Inc.,
753 So. 2d 49
, 51 (2000) (recognizing: “It has long been established that flexibility
is a concept fundamental to a determination of the adequacy of a statute's due process
10
protections . . . . Furthermore, rather than articulating a laundry list of specific
procedures required to protect due process, the United States Supreme Court has
emphasized that the protection of due process rights requires balancing the interests
of the parties involved.”) (citations omitted). Whether a proceeding comports with
fundamental principles of due process depends on, and is informed by, the attendant
circumstances and a balancing of the competing interests at stake.
In assessing whether the proceeding below satisfies constitutional precepts of
due process 9, two matters are worthy of note: first, the proceeding at issue is a
violation of probation hearing and a probationer is not afforded the same panoply of
rights afforded an accused in a criminal prosecution. Second, the proceeding arises
in the midst of a global pandemic which has spawned a public health emergency in
9
The Fifth Amendment to the United States Constitution provides:
No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the Militia, when in actual
service in time of War or public danger; nor shall any person be subject
for the same offence to be twice put in jeopardy of life or limb; nor shall
be compelled in any criminal case to be a witness against himself, nor
be deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just
compensation.
Article I, section 9 of the Florida Constitution provides:
No person shall be deprived of life, liberty or property without due
process of law, or be twice put in jeopardy for the same offense, or be
compelled in any criminal matter to be a witness against oneself.
11
Miami-Dade County and (to varying extents) across the entire State. The Florida
Supreme Court’s administrative orders are crafted in an effort to strike the proper
balance between the competing interests of ensuring the health and safety of all those
entering the courthouse; expeditiously and properly adjudicating criminal cases
consistent with our obligation as a branch, especially those cases in which the
accused remains in custody; and preserving those fundamental due process rights
afforded to an accused.
Probation Violation Hearing Is Not A Criminal Prosecution
A probation violation hearing is not considered a “critical stage of trial” which
would automatically trigger a defendant’s constitutional confrontation right. Unlike
a criminal prosecution, a probation violation hearing is a post-adjudicatory
proceeding. Probation has long been described as an “act of judicial grace,” see
State v. Dodd,
396 So. 2d 1205
, 1208 (Fla. 3d DCA 1981). As our sister court has
cogently observed:
It is well established that “[p]robation is an act of grace to a defendant
convicted of a crime.” Peraza v. Bradshaw,
966 So. 2d 504
, 505 (Fla.
4th DCA 2007). Because a probationer has already been afforded the
full panoply of constitutional protections guaranteed by the
Constitution to an accused individual prior to his or her conviction,
“[w]hen a defendant violates probation, that defendant is not in the
same position as a defendant arrested for the commission of a crime for
which he or she is deemed innocent until proven guilty beyond a
reasonable doubt.”
Id.
As a matter of “grace ... [probation is also]
subject to the trial court's discretion.” Saidi v. State,
845 So. 2d 10
1028
(Fla. 5th DCA 2003).
12
Bell v. State,
179 So. 3d 349
, 351 (Fla. 5th DCA 2015). See also State ex rel.
Roberts v. Cochran,
140 So. 2d 597
, 599 (Fla. 1962) (holding: “The trial judge who
prescribes probation in lieu of immediate imprisonment is allowed a broad judicial
discretion to determine whether the conditions of the probation have been violated,
and, therefore, whether the revocation of probation is in order.”)
By the time a probationer is charged with a violation of probation, his criminal
case has already been adjudicated and, whether by plea or trial, a finding of guilt has
already been made and a probationary sentence has already been imposed. Further,
while a probation violation can result from the commission of a new criminal
offense, such is not required for the commencement of a probation violation
proceeding. A probationer can be found to have violated his probation by failing to
comply with mandatory conditions that do not rise to the level of a criminal offense.
Indeed, when a defendant is found in violation of his probation, and his probation is
revoked, he is thereafter sentenced for the original offense: an offense for which he
was already found guilty and for which he was already provided the full panoply of
due process rights attendant to that earlier criminal prosecution.
In light of these important differences, it is well established that a
probationer’s liberty interests are not co-extensive with those afforded an accused in
a criminal prosecution. See e.g., Gagnon v. Scarpelli,
411 U.S. 778
, 782 (1973)
(holding probation revocation is not a stage of a criminal prosecution); Del Valle v.
13
State,
80 So. 3d 999
, 1018 (Fla. 2011) (observing: “In probation revocation
proceedings, ‘the probationer is entitled to less than the full panoply of due process
rights accorded a defendant in a criminal trial.’” (quoting Carchman v. Nash,
473 U.S. 716
, 726 (1985))); Peters v. State,
984 So. 2d 1227
, 1229 (Fla. 2008) (holding
“revocation of probation or community control proceedings are not criminal
prosecutions” (citing Morrissey,
408 U.S. at 480
)). 10
Below are some examples of significant differences between the rights
afforded a probationer in a violation of probation hearing as compared to those
afforded an accused in a criminal prosecution:
• A probationer has no constitutional right to pretrial release while being held
pending a hearing on an alleged violation of probation (see § 948.06(1)(e)2., Fla.
Stat. (2019)).
10
Compare U.S. v. Thompson,
599 F.3d 595
(7th Cir. 2010), where the Seventh
Circuit Court of Appeals held that a trial judge’s participation in supervised release
revocation hearing via videoconference violated Federal Rule of Criminal Procedure
43. The question of whether a probation violation hearing conducted remotely
would violate Florida Rule of Criminal Procedure 3.180 is not at issue in this case
because, as previously discussed, AOSC 20-23 suspended “all rules of procedure . .
. that limit or prohibit use of communication equipment” so long as such remote
proceeding is not inconsistent with the Florida or United States Constitutions. We
therefore consider here only whether the conduct of such a hearing would violate
Clarington’s applicable constitutional rights.
14
• A probationer has no right to a jury trial on the revocation of his probation.
Drayton v. State,
177 So. 2d 250
(Fla. 3d DCA 1965) (holding: “No such right
exists.”)
• “The standard of proof at a probation violation hearing is preponderance of
the evidence, a significantly lower standard than that required at trial.” State v.
Medina,
118 So. 3d 944
, 949 (Fla. 3d DCA 2013).
• “Hearsay evidence is admissible in violation of probation hearings and can
sustain a violation when corroborated by direct evidence.” Robertson v. State,
800 So. 2d 338
, 339 (Fla. 3d DCA 2001).
• There is no constitutional right of confrontation at a probation hearing. See
Russell v. State,
982 So. 2d 642
, 646 (Fla. 2008) (holding Crawford v. Washington,
541 U.S. 36
(2004), does not apply to revocation proceedings); Souza v. State,
229 So. 3d 387
(Fla. 4th DCA 2017).
• A probationer may assert only a qualified privilege against compulsory self-
incrimination at the probation violation hearing. See Watson v. State,
388 So. 2d 15
(Fla. 4th DCA 1980) (holding a probationer may not validly invoke a Fifth
Amendment privilege to refuse to answer questions at a probation violation hearing
regarding non-criminal conduct alleged to constitute the violation of probation, and
the court may infer a probationer’s refusal to answer questions as evidence of non-
15
compliance with the terms of his probation (citing State v. Heath,
343 So. 2d 13
(Fla.
1977))).
The Right to Face-to-Face Confrontation at a Probation Violation
Hearing
In Morrissey,
408 U.S. at 480
, the United States Supreme Court recognized
that “revocation of parole is not part of a criminal prosecution and thus the full
panoply of rights due a defendant in such a proceeding does not apply to parole
revocations.” The United States and Florida Supreme Courts have subsequently
applied this holding with equal force to probation (and community control)
revocation proceedings. See Gagnon,
411 U.S. at 782
(holding: “Probation
revocation, like parole revocation, is not a stage of a criminal prosecution”).
In Peters v. State,
984 So. 2d 1227
(Fla. 2008), the defendant was alleged to
be in violation of his probation for using illegal narcotics. At the probation violation
hearing, the trial court allowed the State to prove the violation by introducing the
written laboratory results of defendant’s urine tests without calling any witness to
lay the foundation for admission of the report as a business record under section
90.803(6), Florida Statutes. Peters was found to have violated his probation and, on
appeal, contended that his Sixth Amendment right to confront and cross examine
16
witnesses was violated, citing to Crawford v. Washington,
541 U.S. 36
(2004).11
The First District held that Crawford did not apply to probation revocation hearings,
and on review, the Florida Supreme Court approved the First District’s decision,
holding:
Because a probationer has already been found guilty of the crime
charged before being placed on probation or under community
supervision, the revocation proceeding implicates only a limited,
conditional liberty interest rather than the absolute liberty interest
enjoyed by a criminal defendant prior to trial. Therefore, a revocation
proceeding cannot be equated to a criminal prosecution for Sixth
Amendment Confrontation Clause purposes.
Peters,
984 So. 2d 1233
. See also Russell v. State,
982 So. 2d 642
, 645-46 (Fla.
2008) (explaining that because Crawford v. Washington addresses the use of
testimonial hearsay only in the context of a “criminal prosecution,” the decision in
Crawford does not apply to probation revocation proceedings).
Thus, from a constitutional standpoint it is clear that probation violation
hearings are not “criminal prosecutions” under the Sixth Amendment’s
Confrontation Clause. 12 See State v. Cochran,
140 So. 2d 597
, 599 (Fla. 1962)
11
In Crawford, the United States Supreme Court held that an out-of-court testimonial
statement of an unavailable declarant is not admissible at a criminal trial unless the
defendant had a prior opportunity to cross-examine the declarant.
12
The Sixth Amendment to the United States Constitution provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
17
(holding a probation revocation hearing “is not required to assume the full
proportions of a criminal trial”)); Souza,
229 So. 3d 389
(holding the Sixth
Amendment “does not apply to probation revocation proceedings.”)
Indeed, even in the context of a criminal trial, a defendant’s Sixth Amendment
right to physically confront a witness face-to-face is not absolute. Instead, it is
subject to an analysis undertaken in light of the circumstances presented, balancing
the competing interests, public policy or necessities of the case. See e.g., Harrell v.
State,
709 So. 2d 1364
, 1368 (Fla. 1998) (recognizing: “Although the Confrontation
Clause guarantees a criminal defendant the right to physically confront accusers, this
right is not absolute. There are certain exceptions where a defendant’s right of face-
to-face confrontation will give way to ‘considerations of public policy and the
necessities of the case’” (citing Maryland v. Craig,
497 U.S. 836
, 845-46, 849 (1990)
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defense.
Article I, section 16 of the Florida Constitution provides in pertinent
part:
In all criminal prosecutions the accused shall, upon demand, be
informed of the nature and cause of the accusation, and shall be
furnished a copy of the charges, and shall have the right to have
compulsory process for witnesses, to confront at trial adverse
witnesses, to be heard in person, by counsel or both, and to have a
speedy and public trial by impartial jury in the county where the crime
was committed.
18
(noting that the “primary object” of the Confrontation Clause “was to prevent
depositions or ex parte affidavits . . . being used against the prisoner in lieu of a
personal examination and cross-examination of the witness . . . compelling him to
stand face to face with the jury in order that they may look at him, and judge by his
demeanor upon the stand and the manner in which he gives his testimony whether
he is worthy of belief,” and further noting that the “combined effect of these
elements of confrontation—physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact—serves the purpose of the
Confrontation Clause by ensuring that evidence admitted against an accused is
reliable and subject to the rigorous adversarial testing that is the norm of Anglo-
American criminal proceedings,” and finally concluding: “That the face-to-face
confrontation requirement is not absolute does not, of course, mean that it may easily
be dispensed with. . . . [O]ur precedents confirm that a defendant’s right to confront
accusatory witnesses may be satisfied absent a physical, face-to-face confrontation
at trial only where denial of such confrontation is necessary to further an important
public policy and only where the reliability of the testimony is otherwise assured.”))
Due Process Right of Physical Presence Balanced against Important State
Interests, Public Policy or Necessities of the Case
Notwithstanding these distinctions between probation and criminal
prosecutions, it is and remains well established that a defendant in a probation
19
violation proceeding is afforded certain minimum due process rights. As the Florida
Supreme Court acknowledged in Lawson v. State,
969 So. 2d 222
, 230 (Fla. 2007):
This Court has repeatedly held, as early as 1947 in Brill v. State,
159 Fla. 682
,
32 So. 2d 607
(1947), and later in accordance with the United
States Supreme Court's decisions in Morrissey v. Brewer,
408 U.S. 471
,
92 S.Ct. 2593
,
33 L.Ed.2d 484
(1972), and Gagnon v. Scarpelli,
411 U.S. 778
,
93 S.Ct. 1756
,
36 L.Ed.2d 656
(1973), that the power to
revoke probation must be exercised in accordance with due process
principles. These principles require the trial court to provide a
defendant with notice of the alleged violation and an opportunity to be
heard prior to revoking probation.
(Citations omitted.)
We note that these due process requirements are found in section 948.06,
Florida Statutes (2020) which provides, inter alia, that the trial court “shall inform
the person of the violation,” and if the probationer does not admit to the violation
“the court, as soon as may be practicable, shall give the probationer or offender an
opportunity to be fully heard on his or her behalf in person or by counsel.” See §§
948.06(1)(e)1.a.,(2)(d).
And as alluded to earlier, the concept of a defendant’s constitutional right to
confront his accuser and to be physically present in the courtroom has historically
been addressed by courts in two contexts: the difference between in-person
testimony versus documentary evidence, see, e.g., Craig,
497 U.S. at 845-46
(noting
that the “primary object” of the Confrontation Clause “was to prevent depositions
or ex parte affidavits . . . being used against the prisoner in lieu of a personal
20
examination and cross-examination of the witness . . . compelling him to stand face
to face with the jury in order that they may look at him, and judge by his demeanor
upon the stand and the manner in which he gives his testimony whether he is worthy
of belief”); and the difference between an accused being physically present in the
courtroom versus being entirely absent from the proceeding (and thereby precluded
from participating in any fashion). This latter example is most often found in the
sentencing context, where a trial court in a criminal prosecution erroneously
conducts a sentencing (or resentencing) hearing without the defendant being present
at all, therefore denying the accused a meaningful opportunity to participate or to be
heard. See e.g., Jackson v. State,
767 So. 2d 1156
, 1159 (Fla. 2000) (holding capital
defendant has due process right to be present at her resentencing and given a
reasonable opportunity to be heard); Lee v. State,
257 So. 3d 1132
(Fla. 3d DCA
2018) (holding where trial court granted motion to correct illegal sentence,
defendant had a right to be present at the resentencing and to be represented by
counsel; conducting a resentencing proceeding in which neither the defendant nor
his attorney was present violated defendant’s due process rights); Gonzalez v. State,
221 So. 3d 1225
(Fla. 3d DCA 2017) (same); Thompson v. State,
208 So. 3d 1183
,
1187 (Fla. 3d DCA 2017) (holding resentencing defendant in absentia violated
defendant’s due process rights). See also Jordan v. State,
143 So. 3d 335
, 338 (Fla.
2014) (reaffirming that a defendant has a right to be present at the pronouncement
21
of judgment and the imposition of sentence, and noting that this right has been
extended to resentencing hearings as well).
There are few cases which address, at a constitutional level, the concept of a
defendant’s “physical presence in the courtroom” as posed here: the difference
between a defendant being physically present with his counsel, the judge and the
witnesses, versus a proceeding conducted remotely by audio-video technology in
which those participants are at separate locations.
In this regard, we find it helpful to consider the analytical framework relied
upon by the Florida Supreme Court in Doe v. State,
217 So. 3d 1020
(Fla. 2017),
because it did explicitly address the due process requirement of physical, in-court
presence of the defendant and the trial judge for certain proceedings: “At the heart
of this case is the right of an individual to have a judicial officer physically present
at hearings held to determine whether the individual may be involuntarily committed
to a mental health facility or hospital pursuant to section 394.467, Florida Statutes
(2016) (“the Baker Act”).” Id. at 1022.
The Florida Supreme Court ultimately held:
The right to be present at an involuntary commitment hearing is a
fundamental due process right. Mouliom v. Ne. Fla. State Hosp.,
128 So. 3d 979
, 981 (Fla. 1st DCA 2014). While a patient may waive the
right to be personally present, a court must certify that the waiver is
knowing, intelligent, and voluntary.
Id.
The requirement of physical
presence, which is not disputed by any of the parties, would be
meaningless if the judicial officer, or the finder of fact and ultimate
decision-maker, is not also present in the hearing room.
22
Id. at 1026
.
And while Doe, like the instant case, involves the issue of physical presence
versus remote presence, there are distinguishing aspects between the two cases that
compel a different result than the one reached in Doe.
Doe addressed the remote conduct of Baker Act hearings on a permanent
basis. In other words, the question posed in Doe was not whether, under the
temporal health and safety concerns created by a public health emergency, remote
proceedings could be held on an interim basis consistent with principles of due
process during a temporary suspension of court rules that would otherwise require
in-person proceedings. Instead, the Florida Supreme Court was asked to determine
whether, on an ongoing basis, and without any accompanying necessity or
compelling state interest, judges could conduct Baker Act proceedings remotely. In
rejecting such a procedure, the Doe Court importantly noted:
Convenience of the judicial officer is insufficient to justify the violation
of an individual's constitutional rights. Indeed, the Amicus Brief of the
Fifteenth Judicial Circuit offers no reason other than expediency for
desiring a pilot program allowing for the remote appearance of judicial
officers via videoconferencing technology. By contrast, the Amicus,
Disability Rights of Florida, Inc., offers compelling argument as to why
the remote appearance of judicial officers is harmful to patients and
ultimately does not satisfy their right to be physically present and aware
of the proceedings at the Baker Act hearing. . . .
Id.
23
In contrast to Doe, the proposed remote conduct of a probation violation
hearing in the instant case is a temporary procedure, and a reasonable one crafted in
response to the current necessities of a public health emergency. There can be little
doubt that a probationer has a significant interest in being physically present in a
courtroom together with the other participants at his probation violation hearing.
However, the State (as well as the general public and the victim in particular) have
a significant interest in ensuring the effective and expeditious administration of
justice. In light of the temporary nature of the proposed conduct of remote
proceedings at issue here, and balancing the defendant’s interests against the
competing interests at stake and the necessities created by the threat to public health
and safety posed by the novel Coronavirus, we find Doe distinguishable from the
instant case and conclude that, under the circumstances presented, the trial court’s
order directing that the probation violation hearing be conducted by use of remote
technology in which each of the participants will be at a separate location, does not
violate Clarington’s right to confrontation or due process. 13
13
We also note the significance placed by the Doe Court on the fact that Baker Act
proceedings involved a distinct group of Florida’s most vulnerable individuals:
“Courts must be especially careful to protect those due process rights when dealing
with a vulnerable segment of the population and making a decision that ultimately
results in a “massive curtailment of liberty.” Doe,
217 So. 3d 1026
(citation omitted).
The Doe Court further noted that “the remote presence of judicial officers could
likely be injurious to the patient’s condition.” Id. at 1027. Indeed, on at least eight
occasions in its opinion, the Doe Court made reference to the “vulnerable” nature of
individuals subject to the Baker Act, and the impact remote proceedings would have
24
To the extent Clarington alleges that the remote conduct of the proceeding
violates his right to effective assistance of counsel, we conclude that such a claim is
too speculative at this point to resolve by way of a preemptive petition seeking
prohibition relief. 14 In other words, we know, based upon the trial court’s order, that
the violation hearing will proceed by witnesses testifying remotely, and we are able
to conclude (as we have) that this procedure does not violate Clarington’s
confrontation or due process rights. To the extent, however, that Clarington suggests
(for example) that his right to meaningful assistance of, and consultation with,
counsel will be violated if he and counsel are in two different locations during the
proceeding and communicating by use of audio-video equipment, we decline to
address those claims at this point, as we would have to rely upon supposition rather
than a record to determine whether (or the extent to which) the proceedings
on such a vulnerable population. This is a factor to be weighed in assessing the
fairness, accuracy and reliability of the remote proceeding.
14
To be sure, the procedures utilized for conducting a probation violation hearing,
even one that is conducted remotely, must nevertheless ensure that Clarington is
provided an adequate ability to participate in and view the proceedings, to consult
with and receive the assistance of counsel, and to have a meaningful opportunity to
be heard. Given the trial court’s assurances that it will permit Clarington and his
counsel to communicate with each other contemporaneously during the presentation
of evidence and argument, and that the trial court will take breaks to permit
Clarington and his counsel to speak, consult and otherwise communicate with each
other as much and as long as reasonably necessary during the proceeding, there is
no basis in the present record for any claim that Clarington will be denied the same
access to his attorney, or the same ability to fully participate during the hearing, as
he would be afforded if the hearing were held in person.
25
interfered with these rights. See State ex rel. Ferre v. Kehoe,
179 So. 2d 403
, 405
(Fla. 3d DCA 1965) (holding that upon a determination that the trial court has
jurisdiction to proceed, the appellate court “will not issue a writ of prohibition on
the assumption that the [trial] court will exercise that jurisdiction erroneously.”) Our
decision not to address this aspect of Clarington’s petition is without prejudice to his
right to raise these claims in a direct appeal.
IV. CONCLUSION
Clarington and his counsel, as well as amici curiae, 15 raise substantial and
compelling arguments in opposition to the remote conduct of probation violation
hearings. We have carefully considered these arguments, as well as those offered
by the State. We note that, under ordinary circumstances, a probationer would be
physically present in the courtroom, together will all other participants, during a
probation violation hearing. But the question is not what should or will happen in
ordinary circumstances. The question is whether the Florida Supreme Court’s
limited and temporary suspension of certain procedural rules, and the issuance of
temporary administrative orders, permit the remote conduct of a probation violation
hearing consistent with the rights of confrontation and due process provided by the
15
The court extends its appreciation to the National Association of Criminal Defense
Lawyers, Florida Association of Criminal Defense Lawyers, and Florida Public
Defender Association for their participation and filing of a joint amicus curiae brief
in this cause.
26
Florida and United States Constitution. The Florida Supreme Court’s administrative
orders, crafted in the wake of the COVID-19 pandemic, are intended to strike a
proper balance between the competing interests of ensuring the health and safety of
all those entering the courthouse; expeditiously and properly adjudicating criminal
cases, especially those cases in which the accused remains in custody; and
preserving those fundamental rights afforded to an accused.
We conclude that the proceeding proposed by the trial court in this case
appropriately considered these necessities and competing interests, balancing the
defendant’s constitutional rights and the responsibility of the judicial system to hear,
adjudicate and dispose of criminal matters and conduct criminal proceedings,
through the application of temporary procedures needed to ensure the health and
safety of those participating.
We therefore hold that, under the circumstances presented, the trial court’s
order directing that the probation violation hearing be conducted by use of remote
technology in which each of the participants will be at a separate location, does not
violate Clarington’s rights to confrontation and due process. We leave for another
day Clarington’s claim that the conduct of the remote proceeding will impermissibly
interfere with or violate his constitutional right to counsel. 16
16
We also decline at this time to address the claim, raised in the amicus brief, that
Clarington has a constitutional right to be physically present in the courtroom at
any sentencing that may follow a determination that he violated his probation.
27
We emphasize the narrow scope of our decision. This opinion denying
Clarington’s petition for a writ of prohibition, and the analysis that informs that
decision, is limited to the nature of the proceeding at issue (a violation of probation
proceeding), and the question whether such proceeding, if conducted remotely by
audio-video technology, violates petitioner’s due process and confrontation rights,
weighed and analyzed in light of the Coronavirus pandemic and the Florida Supreme
Court’s current administrative orders regulating the conduct of criminal proceedings
in the midst of that public health emergency.
Petition denied.
HENDON, J., concurs.
28
Clarington v. State
Case No. 3D20-1461
GORDO, J. (Concurring in result only).
I concur only in the majority’s result of denying prohibition. “A writ of
prohibition is an appropriate, if extraordinary, remedy that lies when a lower court
is without jurisdiction or is attempting to act in excess of its jurisdiction.” Durham
v. Butler,
89 So. 3d 1023
, 1025 (Fla. 3d DCA 2012) (citations omitted). Mr.
Clarington’s petition fails to meet the requirements for issuance of the extraordinary
writ sought. Thus, I decline to join the majority’s analysis, particularly to the extent
that it negates a defendant’s constitutional rights by balancing them with the
competing interests of the temporary pandemic. “The Constitution of the United
States is a law for rulers and people, equally in war and in peace, and covers with
the shield of its protection all classes of men, at all times, and under all
circumstances.” Ex Parte Milligan,
71 U.S. 2
, 120–21 (1866).
29 |
4,654,752 | 2021-01-26 21:00:53.411015+00 | null | http://media.ca11.uscourts.gov/opinions/pub/files/201715737.pdf | USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 1 of 44
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________
No. 17-15737
__________________________
D.C. Docket No. 1:14-cv-01072-TWT
ACRYLICON USA, LLC,
a Delaware limited liability company,
Plaintiff-Appellee,
versus
SILIKAL GMBH,
a foreign corporation,
Defendant-Appellant.
__________________________
Appeal from the United States District Court
for the Northern District of Georgia
__________________________
(January 26, 2021)
Before JORDAN and TJOFLAT, Circuit Judges, and SCHLESINGER,* District
Judge.
TJOFLAT, Circuit Judge:
*
Honorable Harvey Erwin Schlesinger, United States District Judge for the Middle
District of Florida, sitting by designation.
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 2 of 44
2
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 3 of 44
This case involves the breach of an agreement between two parties who
shared a trade secret, AcryliCon USA, LLC (“AC-USA”), and Silikal GmbH
(“Silikal”). The trade secret consisted of the formula for 1061 SW, a flooring resin
Silikal manufactured and sold (along with other flooring resins). The agreement
provided that AC-USA and its affiliate, AcryliCon International, Ltd. (“AC-
International”), would be Silikal’s exclusive distributors of 1061 SW and that
Silikal would not sell the resin without AcryliCon’s 1 written permission.
According to AC-USA, Silikal breached the agreement by selling 1061 SW
without its written permission, so it sued Silikal under common law for breach of
contract (“Contract” claim) and under the Georgia Trade Secrets Act of 1990
(“GTSA”)2 for misappropriation of the shared trade secret (“Misappropriation”
claim).3 A jury awarded AC-USA damages of $1.5 million on each of the two
claims, and the District Court awarded AC-USA $3 million in punitive damages on
the Misappropriation claim. The District Court thereafter denied Silikal’s post-
1
Throughout this opinion, we will refer to the Plaintiff as “AC-USA” and to AcryliCon
International, Ltd. as “AC-International.” To refer to both entities, we will simply say
“AcryliCon.”
2
O.C.G.A. § 10–1–760 et seq.
3
AC-USA’s Second Amended Complaint, the operative complaint here, contained seven
claims, each in a separate count, as indicated infra. Only the claims for breach of contract
(Count Seven) and misappropriation of trade secret (Count One) were adjudicated in the District
Court’s judgment.
3
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verdict motion for judgment as a matter of law on the Misappropriation and
Contract claims and entered a final judgment for AC-USA for $5,861,415.4
Silikal appeals. It argues first that the District Court erred in denying its
motion to dismiss the case for lack of personal jurisdiction. It argues alternatively
that the Court erred in denying its motion for judgment as a matter of law on the
Misappropriation and Contract claims.5 We reject Silikal’s argument that the
District Court lacked jurisdiction over its person, and therefore affirm the Court’s
denial of Silikal’s motion to dismiss. We are persuaded, though, by Silikal’s
argument that AC-USA failed to prove its Misappropriation claim. We also agree
that AC-USA failed to prove that it sustained cognizable damages on its Contract
claim. We therefore reverse the District Court’s judgment on the Misappropriation
claim and vacate the damages awarded on the Contract claim. We also hold that
AC-USA is entitled to nominal damages and attorney’s fees on its Contract claim
in a sum to be determined by the District Court on remand.
4
The final judgment consists of $1.5 million in damages, $3 million in punitive damages,
and $1,361,415 in attorney’s fees.
5
Silikal does not challenge the District Court’s decision on summary judgment that it
breached the parties’ contract by selling 1061 SW without AC-USA’s written consent. As a
result of that decision, the Contract claim was tried to the jury on the issue of damages only.
4
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 5 of 44
I.
A.
At the center of this dispute is an industrial flooring resin called 1061 SW.
A flooring resin is a liquid that settles into a solid floor when it is combined with
other chemicals and spread over a surface. The 1061 SW resin is unique for two
reasons: It forms a floor with roughly twice the compressive strength of other
resins, and it is a valuable trade secret. The 1061 SW resin is used to make
commercial floors in restaurants, manufacturing facilities, hospitals, schools,
grocery stores, and the like.
Although the parties shared the formula for the purpose of their
manufacturer-distributor relationship, AC-USA and Silikal each claim to own the
1061 SW formula, to the exclusion of the other. Silikal traces its ownership back
to 1987, when it claims to have invented the formula. AC-USA, meanwhile,
claims ownership by virtue of a 2010 Global Settlement Agreement (“GSA”)
entered into by the parties and their affiliates. The GSA resolved a lawsuit
between AC-International and Silikal America—entities affiliated with but distinct
from the parties before us today.
B.
The 1061 SW formula was invented in 1987. While Silikal claims to have
invented the formula on its own, AC-USA insists that Silikal merely participated in
5
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 6 of 44
its invention, and that Bjorn Hegstad, a chemical engineer who founded AC-
International, came up with the idea. According to AC-USA, Hegstad and Silikal
agreed 6 at the time of the formula’s invention that the formula belonged to Hegstad
and AC-International, and that Silikal possessed the formula for the sole purpose of
manufacturing the 1061 SW resin for Hegstad and AC-International.
From 1987 to 1997, Hegstad sold 1061 SW in Norway under an agency
agreement between Hegstad and Silikal. In 1997, AC-International and Silikal
executed an agency agreement establishing AC-International as the exclusive
distributor of 1061 SW resin. 7
In 2008, AC-USA was incorporated. That same year, AC-USA entered into
a licensing agreement with two affiliates of AC-International—Raliz AG and
AcryliCon Distribution Est.—that gave AC-USA the right to import, market, and
sell “AcryliCon Systems”8 in the United States, including the 1061 SW resin. AC-
USA was not permitted to sell AcryliCon Systems outside of the United States
without permission from AC-International.
6
Hegstad testified to the existence of an oral and written agreement, but no written
agreement was actually introduced.
7
While the 1997 agency agreement is referenced in the record, the agreement itself is not
part of the record.
8
The phrase “AcryliCon Systems” refers to the industrial flooring products sold by
AcryliCon, including the floors made from the 1061 SW resin.
6
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Shortly after AC-USA was formed, disputes between AC-International and
Silikal resulted in a lawsuit between the two parties.9 The lawsuit was resolved in
2010 when the parties entered into the GSA. Although AC-USA was not a party to
the lawsuit, it was a party to the GSA.10
The GSA created a contract that accomplished several objectives (“GSA
Contract”). First, it terminated the 1997 agency relationship between AC-
International and Silikal. Second, it settled all present and future claims relating to
the parties’ business relationship, except for claims arising from the GSA Contract
itself. Third, Silikal promised that it would “preserve the secrecy” of the 1061 SW
formula. Fourth, Silikal promised that it would not sell the 1061 SW resin to
anyone other than AcryliCon without AcryliCon’s written consent.11 Fifth, Silikal
9
AC-International filed the lawsuit against Silikal because Silikal had allegedly used
pictures of AC-International’s floors in its sales materials.
10
The parties to the GSA are Silikal GmbH, Silikal USA, Inc., AcryliCon International,
Ltd., AC-USA, LLC, Alpenstock Holding, Ltd., AcryliCon Distribution Est., and Bjorn Hegstad.
11
AC-USA’s Contract claim is based on Paragraph 5 of the GSA Contract, titled
“Confidentiality and Use of 1061 SW.” Paragraph 5 provides in full:
Silikal represents and warrants that it has not disclosed the formula for 1061 SW
resin or sold or distributed 1061 SW resin, directly or indirectly, to anyone other
than AcryliCon during the pendency of the Silikal/AcryliCon relationship. Silikal
hereby covenants and agrees that it will preserve the secrecy of the formula for the
1061 SW resin. Silikal will not disclose or use in any way, directly or indirectly,
the 1061 SW resin or formula for the 1061 SW resin. Silikal further covenants and
agrees NOT to sell or distribute 1061 SW resin to anyone other than AcryliCon, or
as expressly permitted in writing by AcryliCon. Within 10 days of this Settlement
Agreement, Silikal shall ship by DHL to Bjorn Hegstad . . . all laboratory records
and other available documents regarding the formulation and development of the
1061 SW resin.
7
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 8 of 44
promised to ship “all laboratory records and other available documents regarding
the formulation and development of the 1061 SW resin” to Bjorn Hegstad. Finally,
Silikal promised that it would “make no statements or representations . . .
regarding the formula for 1061 SW,” and all parties agreed not to make statements
or representations “that Silikal Products and AcryliCon Systems are the same.”
The GSA Contract also contains a forum-selection provision. The provision
states that disputes arising from activities in the United States shall be governed by
“the laws of the United States and the State of Georgia,” and that jurisdiction shall
be exclusive in the Northern District of Georgia. The parties also waived any
objections to personal jurisdiction and to the location of venue in the Northern
District of Georgia as to all disputes relating to the GSA Contract and arising from
activities in the United States. As to disputes arising outside of the United States,
the GSA states that they shall be governed according to the laws of the place of the
dispute.
C.
AC-USA filed this lawsuit in 2014, claiming that Silikal breached the GSA
Contract by manufacturing the 1061 SW resin, selling it on a global scale, and
taking credit for AcryliCon Systems in its marketing. AC-USA pled seven counts
8
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 9 of 44
in its complaint: misappropriation of trade secrets, 12 trademark infringement,13
unfair competition, 14 state statutory trademark infringement and unfair
competition, 15 common law trademark infringement and unfair competition,16
deceptive trade practices,17 and breach of contract.18
AC-USA filed its complaint in the United States District Court for the
Northern District of Georgia.19 Silikal responded with a motion to dismiss for lack
of personal jurisdiction. According to Silikal, the Northern District of Georgia
lacked jurisdiction over its person because Silikal had not sold 1061 SW in the
United States to anyone other than AcryliCon. Accordingly, the GSA, which
designates the Northern District of Georgia as the jurisdiction for claims arising
from activities in the United States, did not apply. For the same reason, Silikal
also asserted that the Court could not exercise jurisdiction under any applicable
long-arm statute.
12
O.C.G.A. § 10–1–760 et seq. (Count One).
13
15 U.S.C. § 1125
(Count Two).
14
Id.
§§ 1125–1126 (Count Three).
15
O.C.G.A. § 23–2–55 (Count Four)
16
(Count Five)
17
Id. § 10–1–372(a)(1), (3), (5), (7), (8) (Count Six).
18
Specifically, AC-USA argued that Silikal breached the GSA Contract (Count Seven).
19
AC-USA amended its complaint twice, first as a matter of course and second with
leave of the District Court in order to cure issues raised in Silikal’s first motion to dismiss. We
refer to the Second Amended Complaint as the “complaint.”
9
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AC-USA countered that the Northern District of Georgia could exercise
personal jurisdiction over Silikal under the GSA because Silikal had sold 1061 SW
resin in the United States under the label “R 61 H.” The parties produced
competing affidavits on the issue. AC-USA submitted an affidavit from Bernd
Diel, who supervised operations at a Silikal factory in Germany.20 Diel stated that
Silikal had sold 1061 SW to customers other than AcryliCon in the United States,
and that when it did so, it labeled the 1061 SW as R 61 H. Silikal produced an
affidavit from Hubert Weimann, Silikal’s Managing Director.21 According to
Weimann, Silikal “never sold 1061 SW or any product containing the formulation
1061 SW to any customer in the United States, other than directly to Acrylicon.”
Weimann acknowledged that Silikal had sold a resin called R 61 in the United
States, but insisted that R 61 was distinct from 1061 SW.
The District Court denied Silikal’s motion to dismiss, finding that it had
personal jurisdiction over Silikal under the GSA. According to the District Court,
Diel’s affidavit, together with Silikal’s admission that it sold R 61 in the United
20
Diel worked at Silikal for 25 years. In 2009, he was moved to S&H Flooring Consult
GmbH, which is fully controlled by Silikal. He worked at S&H Flooring until January 2014. He
signed his affidavit in November 2014.
21
Weimann has worked at Silikal since 1983. He became the Managing Director in
2008. He held that position in 2017 when he signed his affidavit for this case.
10
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States, was a sufficient basis on which to exercise personal jurisdiction over
Silikal.22
Following the District Court’s ruling, Silikal answered AC-USA’s
complaint. The answer essentially denied liability on all claims.23 Then, after
limited discovery, AC-USA filed a motion for partial summary judgment on its
Contract claim, 24 and for a permanent injunction barring Silikal from producing or
selling 1061 SW. The Court granted AC-USA’s motion and issued a permanent
injunction25 against Silikal, in no small part because “[p]revious counsel for
22
After the District Court denied Silikal’s motion to dismiss, Silikal filed a motion for
reconsideration arguing that the Court’s ruling was based on the misimpression that R 61 and R
61 H were the same product. Since there was no evidence that R 61—as opposed to R 61 H—
was 1061 SW, Silikal argued that there was no evidence that it sold 1061 SW to anyone other
than AC-USA in the United States. Accordingly, Silikal concluded that the GSA did not supply
a jurisdictional basis. The District Court denied Silikal’s motion as untimely and without merit.
23
Silikal’s answer asserted eleven affirmative defenses, including failure of the complaint
to state a claim for relief. None of these affirmative defenses are relevant here.
24
AC-USA sought summary judgment solely on the issue of liability—whether Silikal
breached the GSA Contract by selling 1061 SW resin without AC-USA’s written consent.
25
While the District Court called the injunction permanent, it was in fact preliminary.
The injunction therefore dissolved when the Court entered its final judgment. See U.S. Philips
Corp. v. KBC Bank N.V.,
590 F.3d 1091
, 1093 (9th Cir. 2010); United States ex rel. Berger v.
Lawrence,
848 F.2d 1502
, 1512 (10th Cir. 1988). “The purpose of a preliminary injunction is
merely to preserve the relative positions of the parties until a trial on the merits can be held.”
Univ. of Texas v. Camenisch,
451 U.S. 390
, 395,
101 S. Ct. 1830
, 1834,
68 L. Ed. 2d 175
(1981).
A preliminary injunction only becomes a permanent injunction when the district court includes a
permanent injunction in its final judgment. See Associated Builders & Contractors Fla. E. Coast
Chapter v. Miami-Dade Cnty.,
594 F.3d 1321
, 1323–24 (11th Cir. 2010) (per curiam) (“Once an
order of permanent injunction is entered, any preliminary injunction merges with it . . . .”).
Here, the District Court entered the injunction against Silikal when it granted AC-USA’s
partial motion for summary judgment on the Contract claim. The Court’s entry of summary
judgment decided only the issue of liability, not damages. For that reason, it was not a final
judgment, and the injunction was preliminary. See Fort v. Roadway Express, Inc.,
746 F.2d 744
,
11
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[Silikal] admitted . . . at a status conference before [the District Court] that ‘there
have been sales of [1061 SW] in violation of the global settlement agreement’” and
that Silikal did not “dispute that there [had] been a breach of contract.”
Silikal filed an interlocutory appeal challenging the permanent injunction. 26
Silikal argued that the District Court erred by (1) denying its motion to dismiss for
lack of personal jurisdiction and (2) entering a permanent injunction. AcryliCon
USA, LLC v. Silikal GmbH & Co. (AcryliCon I), 692 F. App’x 613, 615 (11th Cir.
2017) (per curiam).
We declined to exercise our pendent jurisdiction to consider Silikal’s
personal-jurisdiction argument on interlocutory appeal.
Id.
We did so because
“the issue of personal jurisdiction is neither inextricably intertwined with nor
necessary to ensure meaningful review of the district court’s grant of a permanent
injunction.”
Id. at 616
.
Regarding AC-USA’s case for the injunction, Silikal argued that AC-USA
failed to comply with a GSA Contract provision requiring a nonbreaching party to
747 (11th Cir. 1984) (“A final judgment is generally recognized as being an order of the court
which ‘leaves nothing for the court to do but execute on the judgment.’”) (citation omitted);
Warren Publishing, Inc., v. Microdos Data Corp.,
115 F.3d 1509
, 1511 n.1 (11th Cir. 1997) (en
banc); see also Liberty Mut. Ins. Co. v. Wetzel,
424 U.S. 737
, 742,
96 S. Ct. 1202
, 1206 (1976).
The Court did not include a permanent injunction in its final judgment, and the preliminary
injunction therefore dissolved when the Court entered its final judgment. AC-USA has not filed
a cross-appeal challenging the Court’s failure to include a permanent injunction in its final
judgment, so we will not address the issue on appeal.
26
We had jurisdiction to review the injunction as an interlocutory order pursuant to
28 U.S.C. § 1292
(a)(1).
12
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 13 of 44
take certain steps before filing suit.
Id.
Pursuant to the GSA Contract, a
nonbreaching party must provide written notice to the breaching party and an
opportunity to cure the breach within ten days; if it is not cured, the parties must
attempt mediation within 30 days.
Id.
If both steps fail to cure the breach, the
nonbreaching party may file suit.
Id.
Silikal argued, and AC-USA did not dispute, that AC-USA failed to give
written notice or provide a chance at mediation before it filed its initial complaint.
Id.
at 616–17. We nevertheless upheld the injunction because, after AC-USA filed
its initial complaint, it satisfied these GSA Contract requirements.
Id. at 617
.
Before we issued our opinion in AcryliCon I, this case went to trial before a
jury. AC-USA called three live witnesses: Jason Bye, director of sales and ten
percent owner of AC-USA; Dawn Bye, director of operations and 84 percent
owner of AC-USA; and Patrick Gannon, a damages expert. AC-USA presented
the testimony of seven witnesses via videotaped depositions: Bjorn Hegstad; Bernd
Diel; Hubert Weimann; Henning Simon, director of sales and exports of Silikal;
Hermann Huber, production manager of Silikal; Bjoern Hundshammer, assistant
production manager of Silikal; and Harald Schmidt, former managing director and
part owner of Silikal. Finally, AC-USA presented the written deposition testimony
of Bettina Waldecker, managing director of Silikal. The testimony of these
witnesses established that Silikal sold 1061 SW in several foreign countries, but
13
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 14 of 44
none in AC-USA’s licensed territory. Gannon, based on Silikal’s business records,
calculated the revenues and profits Silikal made from selling 1061 SW, including
convoyed sales (that is, sales including both 1061 SW and other products).
After presenting the testimony of these witnesses, AC-USA rested its case
and Silikal moved the District Court for judgment as a matter of law on all of AC-
USA’s claims. 27 Silikal noted AC-USA’s failure to present any evidence that
Silikal had sold 1061 SW in the United States, and argued that AC-USA had
therefore failed to show that it suffered any compensable harm.
AC-USA responded by informing the Court that it was withdrawing five of
its seven claims,28 leaving only the Misappropriation claim and damages on the
Contract claim. 29 The Court granted Silikal’s motion as to the withdrawn claims
27
Fed. R. Civ P. 50(a)(1).
28
The five claims were asserted in Counts Two through Six of the complaint. AC-USA
argued that its withdrawal of the five claims should be treated as a motion to amend its complaint
(to delete the claims), and that Counts Two through Six should be dismissed without prejudice.
The Court rejected AC-USA’s argument and, as indicated in the following text, granted Silikal’s
motion for judgment as a matter of law on those five counts. The Court also entered judgment
for Silikal on Count Seven, the Contract claim, to the extent that Count Seven sought attorney’s
fees under O.C.G.A. § 13–6–11. That section provides:
The expenses of litigation generally shall not be allowed as a part of the damages;
but where the plaintiff has specially pleaded and has made prayer therefor and
where the defendant has acted in bad faith, has been stubbornly litigious, or has
caused the plaintiff unnecessary trouble and expense, the jury may allow them.
O.C.G.A. § 13–6–11.
29
These claims were asserted in Counts One and Seven of the complaint. Only the
matter of damages remained to be litigated on the Count Seven claim because Silikal conceded
that the Court’s order granting AC-USA a permanent injunction based on its breach of the GSA
Contract resolved all Count Seven issues except the matter of damages.
14
USCA11 Case: 17-15737 Date Filed: 01/26/2021 Page: 15 of 44
and denied it as to the Misappropriation and Contract claims, which were then sent
to the jury.
The jury found for AC-USA, awarding $1.5 million on the Misappropriation
claim and $1.5 million on the Contract claim. Post-verdict, AC-USA moved the
District Court to award punitive damages on the Misappropriation claim.30 Over
Silikal’s objection, the Court granted the motion and awarded AC-USA $3 million.
Silikal challenged the jury’s verdicts and the District Court’s punitive damages
decision by renewing its motion for judgment as a matter of law. 31 Silikal also
moved the Court to grant a new trial.32
In its renewed motion, Silikal reiterated its earlier argument that the Court
lacked personal jurisdiction. The Court rejected the argument on two grounds.
First, Diel’s trial testimony indicated that Silikal had distributed a sample of 1061
30
O.C.G.A. § 10–1–763(b) gives the district court discretion to award “exemplary
damages” for “willful and malicious misappropriation.” The jury verdict included a specific
finding that Silikal’s conduct constituting misappropriation was “willful.”
31
Fed. R. Civ P. 50(b).
32
Id.
15
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SW in the United States.33 Second, Silikal had admitted that it breached the GSA
Contract, which harmed AC-USA in the United States. 34
After it resolved the jurisdiction issue, the District Court denied Silikal’s
motions for judgment as a matter of law and for a new trial. The Court concluded
that the evidence was sufficient to establish that Silikal had misappropriated AC-
USA’s trade secret and that AC-USA had suffered cognizable harm.
33
The District Court drew on Diel’s testimony, presented at trial via video:
Q. When did you first tell Mr. Hegstad or Mr. Fischer or anyone else associated with
AcryliCon that you believed that Silikal had been using 1061 [SW] in its sales of R 61 H?
A. It was in February or March 2014. And I didn’t believe, but I knew that they did that.
Q. Do you have any knowledge that R 61 H was ever sold by Silikal to anyone in the
United States?
A. At least as a sample to Sika.
Q. That’s what I mean, whether – no matter what was in it, are you aware of any Silikal R
61 H ever being indirectly shipped to or used in the United States?
A. Yes.
Q. Okay. What knowledge do you have on that basis – in that regard?
A. I know that Sika ordered R 61 H that was determined – or that was supposed to be
shipped into the U.S. from there.
Q. I thought you just told me that the only – that the only knowledge you had that R 61 H
had ever been sold to anyone in the United States was that Sika had been provided with a
sample.
A. Yes, there were samples that officially went to Sika but that went – actually went to
the USA.
34
As we discussed above, prior counsel admitted that “there have been sales of the
product in violation of the [GSA]” and that Silikal does not “dispute that there’s been a breach of
the [GSA].”
16
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After the District Court disposed of Silikal’s motions, AC-USA moved for
attorney’s fees, and the Court awarded $1,361,415. The Court then entered a final
judgment of $5,861,415.
Silikal appealed the District Court’s judgment. Among other things, Silikal
argued that the Court’s $1.5 million damages judgment was only for the
Misappropriation claim and not for the Contract claim. AC-USA disagreed,
arguing that the judgment awarded the same $1.5 million for both the
Misappropriation and Contract claims. Finding the judgment ambiguous, we
issued a limited remand while retaining jurisdiction, instructing the District Court
to clarify its judgment. The District Court promptly entered a revised final
judgment, which gave AC-USA $1.5 million on both the Misappropriation and
Contract claims. We then ordered supplemental briefing on the Contract-claim
award.
Silikal appeals the revised final judgment. We consider four issues. First,
whether the District Court properly exercised personal jurisdiction over Silikal.
Second, whether the District Court erred in denying Silikal’s motion for judgment
as a matter of law on the Misappropriation claim. Third, whether the District
Court erred when it entered its revised final judgment awarding AC-USA $1.5
million in damages on the Contract claim. Fourth, whether AC-USA is entitled to
attorney’s fees. We address each issue in turn.
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II.
Silikal argues that the District Court erred in denying its motion to dismiss
for lack of personal jurisdiction. We hold that Silikal has waived its personal-
jurisdiction challenge by appealing the District Court’s pre-trial jurisdictional
ruling instead of its final disposition. In other words, Silikal appealed the Court’s
denial of its motion to dismiss when it should have appealed the Court’s denial of
its post-verdict motion for judgment as a matter of law.
A.
We review a district court’s exercise of personal jurisdiction de novo and its
factual findings for clear error. Nippon Credit Bank, Ltd. v. Matthews,
291 F.3d 738
, 746 (11th Cir. 2002) (per curiam).
“A federal court sitting in diversity undertakes a two-step inquiry in
determining whether personal jurisdiction exists: the exercise of jurisdiction must
(1) be appropriate under the state long-arm statute and (2) not violate the Due
Process Clause of the Fourteenth Amendment to the United States Constitution.”
Diamond Crystal Brands, Inc. v. Food Movers Intern., Inc.,
593 F.3d 1249
,1257–
58 (11th Cir. 2010) (quoting United Techs. Corp. v. Mazer,
556 F.3d 1260
, 1274
(11th Cir. 2009)).
When a defendant challenges personal jurisdiction in a Rule 12(b)(2) motion
to dismiss, the district court must hear and decide the issue “before trial unless the
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court orders a deferral until trial.” Fed. R. Civ. P. 12(i). Rule 12(i) affords the
district court discretion on how to proceed at this stage. While the plaintiff bears
the burden of establishing personal jurisdiction, the plaintiff’s burden of proof
varies according to how the district court chooses to proceed. Oldfield v. Pueblo
De Bahia Lora, S.A.,
558 F.3d 1210
, 1217 (11th Cir. 2009); see also Forsythe v.
Overmyer,
576 F.2d 779
, 781 (9th Cir. 1978) (“Upon a motion to dismiss for lack
of personal jurisdiction, the burden varies according to the nature of the pre-trial
proceedings in which the jurisdictional question is decided.”).
No matter how the district court proceeds, the plaintiff must eventually—by
the close of evidence—establish personal jurisdiction by a preponderance of the
evidence. General Elec. Credit Corp. v. Scott’s Furniture Warehouse Showroom,
Inc.,
699 F. Supp. 907
, 910 (N.D. Ga. 1988); see also In re DePuy Orthopaedics,
Inc., Pinnacle Hip Implant Prod. Liab. Litig.,
888 F.3d 753
, 778 (5th Cir. 2018);
Grayson v. Anderson,
816 F.3d 262
, 268 (4th Cir. 2016). The district court can
impose the preponderance-of-the-evidence standard right away, during the pre-trial
phase, by conducting an evidentiary hearing. If it holds a hearing, the court
“adjudicate[s] the issue of whether the court has jurisdiction over the defendant’s
person” by “determin[ing] the credibility of the witness testimony, weigh[ing] the
evidence, and find[ing] the relevant jurisdictional facts.” PVC Windoors, Inc. v.
Babbitbay Beach Constr., N.V.,
598 F.3d 802
, 810 (11th Cir. 2010). Because the
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court is making factual determinations and reaching a final decision on
jurisdiction, a preponderance-of-the-evidence standard applies. E.g., Resolution
Trust Corp. v. Pharaon,
915 F. Supp. 351
, 358 (S.D. Fla. 1996); Grayson, 816
F.3d at 269; Schneider v. Hardesty,
669 F.3d 693
, 697 (6th Cir. 2012); Boit v. Gar-
Tec Products, Inc.,
967 F.2d 671
, 676 (1st Cir. 1992).
Alternatively, the district court can wait to impose a preponderance-of-the-
evidence standard until trial. If the court chooses this course, then it reviews the
motion to dismiss under a prima facie standard. In such a case, the district court
decides the motion to dismiss based solely on the complaint and affidavits. The
plaintiff meets its burden if it presents enough evidence to withstand a motion for
judgment as a matter of law. Stubbs v. Wyndham Nassau Resort & Crystal Palace
Casino,
447 F.3d 1357
, 1360 (11th Cir. 2006). The court accepts as true all
unchallenged facts in the plaintiff’s complaint, and then considers all affidavit
evidence proffered by the parties. To the extent that “the plaintiff’s complaint and
supporting evidence conflict with the defendant’s affidavits, the court must
construe all reasonable inferences in favor of the plaintiff.” Diamond Crystal,
593 F.3d at 1257
. Whether the plaintiff satisfies the prima facie requirement is a purely
legal question; the district court does not weigh evidence or make credibility
determinations.
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If the district court applies the prima facie standard and denies the motion to
dismiss, “it is implicitly, if not explicitly, ordering ‘that hearing and determination
[of the motion to dismiss] be deferred until the trial.’” Boit,
967 F.2d at 676
(alteration in original) (quoting Fed. R. Civ. P. 12(d)). 35 After trial, if the
defendant still believes personal jurisdiction is lacking, it may invite the district
court to revisit personal jurisdiction in light of the evidence produced at trial, at
which time the court will impose a preponderance-of-the-evidence standard.
Personal jurisdiction is a waivable defect. Palmer v. Braun,
376 F.3d 1254
,
1259 (11th Cir. 2004) (per curiam). A defendant who does not object to personal
jurisdiction in a responsive pleading or a Rule 12 motion, or who raises personal
jurisdiction for the first time on appeal, waives the defect.
Id.
B.
Silikal did not request, and the District Court did not conduct, an evidentiary
hearing to decide the personal jurisdiction issue before trial. Rather, based on AC-
USA’s complaint and supporting affidavits, as well as Silikal’s affidavits, the
35
The language quoted in Boit comes from an older version of Rule 12. The rule was
amended in 2007 for stylistic purposes only. Fed. R. Civ. P. 12 advisory committee’s note to
2007 amendment. The current version reads:
If a party so moves, any defense listed in Rule 12(b)(1)-(7)–whether made in a
pleading or by motion–and a motion under Rule 12(c) must be heard and decided
before trial unless the court orders a deferral until trial.
Fed. R. Civ. P. 12(i).
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Court decided that AC-USA satisfied the prima facie standard for personal
jurisdiction.
By denying Silikal’s motion to dismiss, the District Court implicitly deferred
the jurisdictional determination until trial. Post-trial, as part of its renewed motion
for judgment as a matter of law, Silikal asked the District Court to revisit the
personal jurisdiction issue in light of the evidence. 36 In so doing, Silikal subjected
AC-USA to the heightened preponderance-of-the-evidence standard.
When the District Court revisited the issue post-trial, it offered two new
grounds for finding personal jurisdiction. Both came to light during the trial and
were not included in the Court’s pre-trial order denying the motion to dismiss. The
District Court’s post-trial ruling was its final disposition of the personal
jurisdiction issue. If the Court considered the record incomplete when it denied the
motion to dismiss pre-trial, the record of the trial afforded it the opportunity to
make a more informed jurisdictional ruling.
Silikal has waived its challenge to personal jurisdiction because it only
appeals the District Court’s pre-trial denial of its motion to dismiss, rather than the
Court’s post-trial disposition of the jurisdiction issue. In essence, Silikal asks us to
36
Instead of raising the personal jurisdiction issue in its motion for judgment as a matter
of law, Silikal should have raised it in a motion to revisit personal jurisdiction. For the purposes
of this discussion, we treat Silikal’s request as if it appeared where it belonged—in a motion to
revisit.
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review the motion-to-dismiss record to determine whether the District Court erred
at that juncture, despite the fact that the Court, in its pre-trial order, deferred its
final jurisdictional ruling until trial. Because Silikal makes no argument about the
post-trial order, we do not review it.
Stated generally, we now hold that when a district court denies a motion to
dismiss for lack of personal jurisdiction, and then revisits personal jurisdiction
post-trial in light of the record as it exists at that time, the defendant must appeal
the post-trial disposition in order to preserve the issue of personal jurisdiction on
appeal.
III.
Silikal argues that the District Court erred in denying its motion for
judgment as a matter of law on AC-USA’s Misappropriation claim. We agree, and
accordingly reverse the judgment.
We review the denial of a renewed motion for judgment as a matter of law
de novo. EEOC v. Exel, Inc.,
884 F.3d 1326
, 1329 (11th Cir. 2018). “Under Rule
50, a party’s motion for judgment as a matter of law can be granted at the close of
evidence or, if timely renewed, after the jury has returned its verdict, as long as
there is no legally sufficient evidentiary basis for a reasonable jury to find for the
non-moving party.” Chaney v. City of Orlando,
483 F.3d 1221
, 1227 (11th Cir.
2007) (quotation marks omitted) (alteration adopted).
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To prove a claim for misappropriation of trade secrets under the GTSA, a
plaintiff must show that “(1) it had a trade secret and (2) the opposing party
misappropriated the trade secret.” Penalty Kick Mgmt. Ltd. v. Coca Cola Co.,
318 F.3d 1284
, 1290–91 (11th Cir. 2003).
AC-USA claims that Silikal’s manufacture and sale of the 1061 SW resin
without its prior written consent constituted misappropriation under the GTSA.
The parties agree that the 1061 SW formula is a trade secret, but disagree as to
whether the evidence was sufficient for the jury to decide that the trade secret was
AC-USA’s and that Silikal misappropriated it. We find it unnecessary to decide
whether AC-USA had the trade secret, because the evidence that Silikal
misappropriated it is insufficient as a matter of law.
Misappropriation, in the sense relevant here, means:
Disclosure or use of a trade secret of another without express or implied
consent by a person who . . . [a]t the time of disclosure or use, knew or
had reason to know that knowledge of the trade secret was . . .
[a]cquired under circumstances giving rise to a duty to maintain its
secrecy or limit its use.
O.C.G.A. § 10–1–761(2)(B) (emphasis added).37
37
O.C.G.A. § 10–1–761(2) reads in full:
(2) “Misappropriation” means:
(A) Acquisition of a trade secret of another by a person who knows or has reason
to know that the trade secret was acquired by improper means; or
(B) Disclosure or use of a trade secret of another without express or implied consent
by a person who:
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It is undisputed that Silikal used the formula without AC-USA’s consent.
Thus, assuming arguendo that AC-USA had the trade secret, AC-USA had to show
that (1) Silikal owed AC-USA a duty to maintain the formula’s secrecy or limit its
use, and (2) that this duty arose at the time Silikal acquired the formula. AC-USA
failed to make this showing.
At most, the evidence showed that Silikal and Hegstad developed the 1061
SW formula together in 1987. Furthermore—if we are generous to AC-USA—it
showed that Silikal agreed with Hegstad that the formula would be the property of
Hegstad and AC-International.38 AC-USA could not have been a party to this
(i) Used improper means to acquire knowledge of a trade secret;
(ii) At the time of disclosure or use, knew or had reason to know that knowledge of
the trade secret was:
(I) Derived from or through a person who had utilized improper means to acquire
it;
(II) Acquired under circumstances giving rise to a duty to maintain its secrecy or
limit its use; or
(III) Derived from or through a person who owed a duty to the person seeking relief
to maintain its secrecy or limit its use; or
(iii) Before a material change of position, knew or had reason to know that it was a
trade secret and that knowledge of it had been acquired by accident or mistake.
38
We note two significant problems with this factual theory. First, it is in tension with
the terms of the GSA Contract. If Hegstad were the developer and owner of the formula, one
would expect him to possess it. Yet the GSA required Silikal to ship the 1061 SW formula to
Hegstad, suggesting Hegstad did not already possess it. AC-USA has not explained why this
inconsistency does not rebut its factual theory. Second, the theory that the formula belonged to
AcryliCon rather than Silikal is in tension with the nature of the parties’ manufacturer-distributor
relationship. A “distributorship” is defined as “[a] company that has an arrangement to sell the
products of another company.” Distributorship, Black’s Law Dictionary (11th ed. 2019)
(emphasis added). AcryliCon was Silikal’s exclusive distributor of 1061 SW resin, and the GSA
did nothing to alter the essence of this relationship. Accordingly, the natural expectation would
be that Silikal owned the formula, since it was the entity that actually manufactured the resin. If
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agreement because AC-USA did not exist at the time the formula was developed.39
At most, therefore, the evidence showed that Silikal owed AC-International a duty
at the time Silikal acquired the formula. Silikal owed no such duty to AC-USA.
It was not until the parties entered the GSA Contract in 2010 that Silikal
incurred any duty to AC-USA with respect to the formula. Under the GSA
Contract, Silikal agreed to “preserve the secrecy of the formula for the 1061 SW
resin.” It also promised it would not “disclose or use in any way . . . the 1061 SW
resin or the formula for the 1061 SW resin” and that it would not “sell or distribute
1061 SW resin to anyone other than AcryliCon” without AcryliCon’s permission.
To prove misappropriation, however, AC-USA had to show that Silikal owed these
duties to AC-USA at the time Silikal acquired the formula. Proof that these duties
arose by contract thirteen years later was insufficient as a matter of law. Because
AC-USA did not exist at the time 1061 SW was developed and Silikal acquired it,
it was factually impossible for AC-USA to prove what the GTSA requires.
Silikal’s violation of the duties created by the GSA Contract gave AC-USA a claim
for breach of contract, not for misappropriation of a trade secret.
it were otherwise, AC-USA, by definition, would not be Silikal’s distributor. Nonetheless, for
the purpose of reviewing the District Court’s denial of Silikal’s motion for judgment as a matter
of law, we will overlook these problems.
39
AC-USA did not come into existence until 2008.
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In sum, the District Court erred in denying Silikal’s motion for judgment as
a matter of law on AC-USA’s Misappropriation claim. In addition to entering
judgment for Silikal on the Misappropriation claim, the Court should have struck
the $3 million punitive damages award that was based on that claim. The award is
therefore vacated.
IV.
We now address whether the $1.5 million damages award can be sustained
on the basis of AC-USA’s Contract claim. We hold that it cannot, and we
therefore vacate the award.
The jury returned a verdict for AC-USA awarding $1.5 million on the
Misappropriation claim and $1.5 million on the Contract claim. The District Court
then ordered the clerk to enter judgment for AC-USA in the sum of $4.5 million
($1.5 million in compensatory damages and $3 million in punitive damages).
Finding the judgment ambiguous, we issued a limited remand to the District Court
for clarification about whether the judgment was based on the Misappropriation
claim only, or whether it was also based on the Contract claim.40 In response, the
Court issued a revised final judgment stating that each claim was an independent
ground for the award.
40
The judgment stated merely that “judgment is entered . . . in favor of the Plaintiff and
against the Defendant in the sum of $4.5 million.”
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We then allowed the parties to submit supplemental briefing regarding the
Court’s revised judgment. Silikal argues in its supplemental brief that the District
Court erred in entering the revised judgment for AC-USA on its Contract claim
because AC-USA failed to prove actual damages from Silikal’s breach. We agree,
and hold that AC-USA is instead entitled only to an award of nominal damages.
A.
To explain the District Court’s error, we must first distinguish between the
remedies of restitution and actual damages. The remedy of restitution applies
when a plaintiff confers a benefit on a defendant, and the defendant would be
unjustly enriched at the expense of the plaintiff if it were allowed to keep the
benefit. Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. a (Am.
L. Inst. 2011). The remedy typically compels the defendant to “restore the benefit
in question or its traceable product, or else pay money in the amount necessary to
eliminate unjust enrichment.” Id. Thus, the essence of the remedy is usually “the
reversal of a transfer.” Id. Sometimes, however, “the remedy for unjust
enrichment gives the plaintiff something . . . that the plaintiff did not previously
possess.” Id. This species of restitution is called disgorgement, and it generally
allows a plaintiff to recover the defendant’s “wrongful gain,” even if that gain
exceeds the plaintiff’s provable loss. Id. § 3 cmt. a.
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Actual damages for breach of contract, by contrast, “are given as
compensation for the injury sustained as a result of the breach of a contract.”
O.C.G.A. § 13–6–1 (emphasis added). The fundamental difference between
restitution and actual damages, therefore, is that the former is measured by the
defendant’s gain, while the latter is measured by the plaintiff’s loss. Dan B.
Dobbs, Law of Remedies § 4.1(1), at 555 (2d ed. 1993).
A plaintiff who proves misappropriation of a trade secret under O.C.G.A. §
10–1–763 may recover money for both unjust enrichment and actual damages.
Section 10–1–763 provides:
Damages can include both the actual loss caused by misappropriation
and the unjust enrichment caused by misappropriation that is not taken
into account in computing actual loss.
Accordingly, the District Court instructed the jury that, if it found that
Silikal misappropriated AC-USA’s trade secret, it could award AC-USA money
for actual loss and/or for Silikal’s unjust enrichment. The jury instruction tracked
the language of § 10–1–763 essentially verbatim. The instruction did not define
unjust enrichment, but merely stated that “[u]njust enrichment occurs if Silikal
receives a benefit to which it is not entitled.”
The jury instruction regarding damages for breach of contract, by contrast,
said nothing of unjust enrichment. Instead, the Court instructed the jury that:
Damages recoverable for a breach of contract are such as arise naturally
and according to the usual course of things from the breach and such as
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the parties contemplated when the contract was made as the probable
result of the breach.
In every case of breach of contract, the party not breaching it has a right
to damages. But if there has been no actual damage, the Plaintiff can
recover nominal damages.
Remote or consequential damages are not allowed whenever they
cannot be traced solely to the breach of the contract unless they may be
computed exactly such as the revenues that are the immediate fruit of
the contract and are independent of any collateral enterprises entered
into in contemplation of the contract.
Thus, to obtain a money judgment on its Misappropriation claim, AC-USA
could prove either that it suffered actual damages from Silikal’s conduct, or that
Silikal was unjustly enriched at AC-USA’s expense. On its Contract claim, by
contrast, AC-USA could obtain a money judgment only by proving actual damages
of the sort that “the parties contemplated when the contract was made.” If it failed
to prove this, then AC-USA could only obtain nominal damages.
B.
AC-USA failed as a matter of law to prove that it suffered actual damages
from Silikal’s breach.
Actual damages under Georgia law may be direct or consequential. Direct
damages “arise naturally and according to the usual course of things from [the]
breach.” Denny v. Nutt,
375 S.E.2d 878
, 879 (Ga. App. 1988) (quoting Quigley v.
Jones,
334 S.E.2d 664
, 665 (Ga. 1985)). Consequential damages, by contrast, arise
“as the probable result of [the] breach.”
Id.
The key distinction between direct
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damages and consequential damages is that the former compensate for the value of
the promised performance, while the latter compensate for additional losses
incurred as a result of the breach. See Imaging Systems Int’l., Inc. v. Magnetic
Resonance Plus, Inc.,
490 S.E.2d 124
, 127 (Ga. Ct. App. 1997) (noting that
consequential damages “may include profits which might accrue collaterally as a
result of the contract’s performance,” while direct damages “may include profits
necessarily inherent in the contract”) (quotation marks omitted).
On appeal, AC-USA does not argue that it suffered direct damages from
Silikal’s breach. Rather, AC-USA argues that, by selling the 1061 SW formula in
violation of the GSA, Silikal made profits that would have been AC-USA’s had
there been no breach. Alternatively, AC-USA argues that Silikal’s breach reduced
the value of 1061 SW, and that AC-USA is entitled to damages equal to the
formula’s reduced value. We hold that AC-USA failed as a matter of law to prove
these consequential damages.41
41
We also note that AC-USA’s damages theory on appeal is in conflict with its theory at
trial. AC-USA’s theory at trial was based chiefly on restitution. Patrick Gannon, AC-USA’s
damages expert, calculated damages based on Silikal’s revenues. Jason Bye, when asked what
damages AC-USA was requesting, answered that the damages were from Silikal “selling our
product as their own and profiting from it.” When asked why AC-USA was entitled to Silikal’s
profits, he stated: “I just don’t think it’s fair that they sell our product as their own and make
money off that.” Dawn Bye’s testimony was substantially the same. Finally, at closing
argument, AC-USA’s counsel urged the jury to award AC-USA “the amount of money that
Silikal made from breaching the agreement and misappropriating [AC-USA]’s trade secrets.”
AC-USA also opposed Silikal’s post-verdict motion for judgment as a matter of law—
which argued that AC-USA failed to prove actual damages—by emphasizing its unjust
enrichment theory. AC-USA responded that “Silikal’s focus on the alleged lack of damage to
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A plaintiff may not recover consequential damages for breach unless such
damages are within the contemplation of the parties at the time the contract was
made, are “capable of exact computation,” and “are independent of any collateral
enterprise entered into in contemplation of the contract.” O.C.G.A. § 13–6–8.
Lost profits that are not part of the benefit of the bargain may be recovered
as consequential damages. Imaging Systems Int’l.,
490 S.E.2d at 127
. However,
“[t]he profits of a commercial business are dependent on so many hazards and
chances, that unless the anticipated profits are capable of ascertainment, and the
loss of them traceable directly to the defendant’s wrongful act, they are too
speculative to afford a basis for the computation of damages.” Johnson Cnty.
School Dist. v. Greater Savannah Lawn Care,
629 S.E.2d 271
, 273–74 (Ga. Ct.
App. 2006) (citation omitted). Accordingly, a plaintiff seeking lost profits must
provide “information or data sufficient to enable [the trier of fact] to estimate the
amount of the loss with reasonable certainty.” Bearoff v. Craton,
830 S.E.2d 362
,
373 (Ga. Ct. App. 2019) (alteration in original) (quoting Pounds v. Hosp. Auth. Of
Gwinnett Cnty.,
399 S.E.2d 92
, 94 (Ga. Ct. App. 1990)). “This ‘information or
data’ must include evidence showing that the business claiming lost profits had ‘a
[AC-USA] all but ignores the unjust enrichment theory on which the damages were based.” AC-
USA insisted that evidence regarding its own lost profits, or lack thereof, was irrelevant. By
relying on unjust enrichment in this way, AC-USA effectively abandoned any argument that it
suffered actual damages from Silikal’s breach.
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proven track record of profitability.’”
Id.
(quoting EZ Green Associates v.
Georgia-Pacific Corp.,
770 S.E.2d 273
, 277 (Ga. Ct. App. 2015)). “The plaintiff
must also show the expected profit for the relevant time period” including “the
business’[s] projected revenues, as well as its projected expenses, for that time
frame.”
Id.
(quoting Johnson Cnty.,
629 S.E.2d at 274
).
Thus, in Bearoff, the Georgia Court of Appeals held that the plaintiffs could
not recover lost profits for the defendants’ breach of a non-compete agreement
because the only evidence of plaintiffs’ loss was defendants’ gross profits earned
from the breach.
Id.
According to the Court, while the amount a defendant gained
from breaching a contract “may be probative of the plaintiff’s loss,” it is not
dispositive.
Id. at 372
. Because plaintiffs failed to present evidence of “a track
record of profitability,” or any “figures showing the store’s anticipated revenues
and expenses” for the relevant time period, the Court concluded that the plaintiffs’
lost profits could not be calculated with reasonable certainty.
Id. at 373
.
The evidence AC-USA introduced at trial was likewise insufficient to
establish lost profits. Jason Bye testified that Silikal’s extraterritorial sales of 1061
SW hurt AC-USA’s reputation as “the sole provider of the 1061 SW.” Dawn Bye
similarly testified that Silikal’s use of 1061 SW injured AC-USA. When asked
exactly how AC-USA had been injured, Dawn Bye responded that AC-USA was
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“supposed to be the sole provider and sole source of 1061 SW,” and that Silikal’s
profits from 1061 SW were therefore owed to AC-USA as damages.
The foregoing testimony amounted to nothing more than an assumption that
Silikal’s profits would have been AC-USA’s but for Silikal’s breach. AC-USA
failed to introduce any evidence of projected profits, revenues, or expenses. Nor
did AC-USA produce evidence of a “proven track record of profitability.” AC-
USA also did not point to any customers that it would have sold to if not for
Silikal’s breach. The evidence was insufficient to allow the jury to conclude with a
reasonable degree of certainty that, if not for the breach, AC-USA would have
made the 1061 SW sales that Silikal did. Therefore, AC-USA failed as a matter of
law to prove lost profits.
AC-USA argues in the alternative that we should uphold the damages
judgment as a measure of 1061 SW’s lost value. In support of this lost-value
measure of damages, AC-USA cites Fluorine on Call, Ltd. v. Fluorogas Ltd.,
380 F.3d 849
(5th Cir. 2004). As an initial matter, we note that the Fifth Circuit in
Fluorine merely discussed this theory of recovery without deciding whether it
applied under Texas law. Fluorine, 380 F.3d at 860. The Fifth Circuit noted that
the theory applies when a defendant’s breach reduces the value of an asset owned
by the plaintiff. Id. In this situation, the plaintiff can recovery consequential
damages equal to the asset’s decreased value. Id. To do so, however, the plaintiff
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must introduce evidence of the “market value of the asset at the time of breach.”
Id. (quoting Schonfeld v. Hilliard,
218 F.3d 164
, 176 (2d Cir. 2000)). “[I]n the
absence of a standardized market or exchange,” the Court noted that a plaintiff
may prove market value through expert opinion or “evidence of sales of
comparable assets.”
Id.
(quoting Schonfeld,
218 F.3d at 178
). Ultimately, the
Court found that the plaintiff had failed to make the required showing because the
record contained no evidence of the asset’s market value. Id. at 861.
Even assuming Georgia law recognizes lost-value damages, we find the
evidence legally insufficient under this theory, as well. AC-USA claims that the
value of the 1061 SW formula in its hands was diminished because of Silikal’s
breach. Jason and Dawn Bye said as much at trial. However, AC-USA presented
no evidence of 1061 SW’s market value before or after the breach. Therefore,
there was no legally sufficient basis to award lost-value damages.
C.
As an alternative to its actual-damages theory, AC-USA urges us to uphold
the Contract damages judgment on a theory of disgorgement. We decline to do so
for two reasons. First, disgorgement is not an available remedy for breach of
contract under Georgia law. Second, even supposing disgorgement were available
for breach, the jury was not instructed that it could award this remedy. We would
35
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therefore run afoul of the Seventh Amendment if we upheld the award on this
basis.
1.
AC-USA argues that disgorgement is available for Silikal’s breach because
“Silikal’s conduct . . . was in the nature of theft,” and disgorgement is an
appropriate remedy for such intentional misconduct. In support of its argument,
AC-USA cites the Restatement (Third) of Restitution and Unjust Enrichment,
which states: “If a deliberate breach of contract results in profit to the defaulting
promisor and the available damage remedy affords inadequate protection to the
promisee’s contractual entitlement, the promisee has a claim to restitution of the
profit realized by the promisor as a result of the breach.” Restatement (Third) of
Restitution and Unjust Enrichment § 39(1). The Restatement’s comments make
clear that § 39 describes a disgorgement remedy—meaning that it permits a
plaintiff to “recover the defendant’s profits from breach, even if they exceed the
provable loss to the [plaintiff] from the defendant’s defaulted performance.” Id.
cmt. a. AC-USA points to no authority suggesting that the Restatement approach
applies in Georgia, however. 42
42
AC-USA cites Kansas v. Nebraska,
574 U.S. 445
,
135 S. Ct. 1042
(2015), in support
of its argument that disgorgement is a remedy for breach of contract. In that case, the Supreme
Court enforced a remedy crafted by a special master that included partial disgorgement.
Id.
at
448–49,
135 S. Ct. at 1049
. However, the Court noted that its equitable powers were expanded
beyond what they would be in an ordinary suit between private parties because (1) the Court was
36
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On the contrary, Georgia’s statutory remedies for breach do not include
anything resembling disgorgement, and AC-USA has not identified any authority
suggesting that disgorgement is available as a matter of Georgia common law.43
On the contrary, a review of Georgia case law strongly suggests that the remedy is
only available for breaches of fiduciary duty. See, e.g., Bearoff, 830 S.E.2d at 372
(upholding trial court’s refusal to award disgorgement for breach of non-compete
agreement because “Plaintiffs had not asserted a breach of fiduciary duty claim”);
McMillian v. McMillian,
713 S.E.2d 920
, 922–23 (Ga. Ct. App. 2011) (discussing
Georgia Court of Appeals decisions “suggest[ing] that disgorgement of ill-gotten
revenues or profits may be an appropriate remedy for a breach of fiduciary duty in
some cases,” but refusing to decide whether such a remedy is available for
breaches in a partnership arrangement).
Since disgorgement is not among Georgia’s statutory contract remedies, and
there is no indication that it is available as a matter of common law, we presume
exercising its original jurisdiction to hear suits between states; (2) the case involved a dispute
over water rights; and (3) the case involved a compact that had been given congressional
approval and thereby attained the status of federal law.
Id.
at 453–56,
135 S. Ct. at
1051–53.
For those reasons, the case has no bearing on an ordinary contract dispute between private
parties.
43
The only case interpreting Georgia law that AC-USA cites is Direct Response Prods.,
Inc. v. Thomas, No. 1:13-CV-1526-WSD,
2013 WL 5890473
(N.D. Ga. Nov. 1, 2013). In Direct
Response, the District Court noted in dicta that an employer may receive an employee’s unjust
gain as a remedy for the employee’s unlawful use of employer information.
Id. at *4
. This
statement does not support AC-USA’s broad argument that disgorgement is an appropriate
remedy for intentional breaches of contract.
37
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that the remedy is precluded by the traditional contract-law principle that damages
should put the injured party in the position he would be in had the contract been
performed.44 See Lastinger v. City of Adel,
26 S.E.2d 158
, 159 (Ga. Ct. App.
1943); see also E. Allan Farnsworth, Your Loss or My Gain? The Dilemma of the
Disgorgement Principle in Breach of Contract,
94 Yale L.J. 1339
, 1341 (1985)
(“[I]t is a principle of the law of contracts that damages for breach should be based
on the injured party’s lost expectation.”). Indeed, The Restatement itself notes that
the “usual presumptions of contract law” limit recovery to the plaintiff’s provable
damages, and that the disgorgement remedy is therefore “anomalous on its face” as
a remedy for breach. Restatement (Third) of Restitution and Unjust Enrichment §
39 cmt. a. Therefore, the $1.5 million judgment cannot stand on a disgorgement
theory.
44
In line with this principle, we note that while Georgia law enforces provisions for
liquidated damages, O.C.G.A. § 13–6–7, it only does so to the extent such provisions are not
penal in nature, Broadcast Corp. of Ga. v. Subscription Television of Greater Atlanta,
338 S.E.2d 775
, 776–77 (Ga. Ct. App. 1985). A provision for liquidated damages will be treated as
an unenforceable penalty unless (1) the injury caused by the breach is difficult or impossible to
accurately estimate; (2) the parties intended to provide for damages rather than a penalty; and (3)
the stipulated sum is a reasonable pre-estimate of the probable loss resulting from the breach.
Southeastern Land Fund v. Real Estate World,
227 S.E.2d 340
, 343 (Ga. 1976). “Where a
designated sum is inserted into a contract for the purpose of deterring one or both of the parties
from breaching it, it is penalty.” Broadcast Corp. of Ga.,
338 S.E.2d at 777
(quoting Florence
Wagon Works v. Salmon,
68 S.E. 866
, 866 (Ga. Ct. App. 1910)).
The fundamental contract-law principle that a remedy for breach should be based on the
loss suffered by the non-breaching party, therefore, is strong enough even to overcome the
contracting parties’ contrary intent. The principle should apply with even more force here,
where there is no indication that the parties contemplated a breach remedy without connection to
the non-breaching party’s actual damages.
38
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2.
Even supposing disgorgement were an available contract remedy, it would
run afoul of the Seventh Amendment to uphold the award on a basis that was not
submitted to the jury.
The Seventh Amendment declares: “In suits at common law, where the
value in controversy shall exceed twenty dollars, the right of trial by jury shall be
preserved . . . .” U.S. Const. amend. VII. The Supreme Court has “consistently
interpreted the phrase ‘Suits at common law’ to refer to ‘suits in which legal rights
were to be ascertained and determined, in contradistinction to those where
equitable rights alone were recognized, and equitable remedies were
administered.’” Granfinanciera, S.A. v. Nordberg,
492 U.S. 33
, 41,
109 S. Ct. 2782
(1989) (quoting Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447,
7 L. Ed. 732
(1830)). Under the test articulated in Granfinanciera, the Seventh Amendment
applies if both the cause of action and the remedy sought are legal, as opposed to
equitable in nature. See id. at 42,
109 S. Ct. at 2790
. Where the Seventh
Amendment applies, “issues that are proper for the jury must be submitted to it to
preserve the right to a jury’s resolution of the ultimate dispute.” City of Monterey
v. Del Monte Dunes at Monterey, Ltd.,
526 U.S. 687
, 718,
119 S. Ct. 1624
(1999)
(quotation marks omitted).
39
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The Seventh Amendment applies here because breach of contract is a
traditional action at law, and a money judgment, even if based on restitution, is
generally a legal remedy. 45 See Teamsters v. Terry,
494 U.S. 558
, 570,
110 S. Ct. 1339
(1990) (“[A]n action for money damages was the traditional form of relief
offered in the courts of law.”) (quotation marks omitted).
AC-USA asks us to uphold the $1.5 million award on a basis that the jury
could not have considered. With respect to the Contract claim, the jury was not
instructed to decide whether AC-USA was entitled to Silikal’s profits as
disgorgement; rather, it was instructed only to consider whether AC-USA was
entitled to actual damages. If we accepted AC-USA’s argument, we would
effectively be swapping out the jury’s actual-damages award for a restitution
award. To be sure, the number would be kept the same, but the nature of the relief
45
Restitution may be a remedy at law or equity, depending on “the basis for [the
plaintiff’s] claim and the nature of the underlying remedies sought.” Great-West Life & Annuity
Insurance Co. v. Knudson,
534 U.S. 204
, 212,
122 S. Ct. 708
(2002) (alteration in original)
(citation omitted); see also Restatement (Third) of Restitution and Unjust Enrichment § 4(1). A
restitution remedy in the form of “a judgment imposing a merely personal liability upon the
defendant to pay a sum of money” is generally a remedy at law. Knudson,
534 U.S. at 213
,
122 S. Ct. at 714
; see also Restatement (Third) of Restitution and Unjust Enrichment § 4 cmt. d. By
contrast, where a plaintiff seeks restitution of property “identified as belonging in good
conscience to the plaintiff” and which can “clearly be traced to particular funds or property in the
defendant’s possession,” the remedy is in equity. Knudson,
534 U.S. at 213
,
122 S. Ct. at 714
;
see also Restatement (Third) of Restitution and Unjust Enrichment § 4 cmt. d; Dobbs, supra §
4.1(1), at 556 (“Restitution claims for money are usually claims ‘at law.’”).
The judgment here directed Silikal to pay AC-USA $1.5 million—the value of Silikal’s
wrongfully-earned profits—not to return to AC-USA any particular property or funds.
Therefore, the remedy is legal as opposed to equitable.
40
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would be entirely different. This would run afoul of the Seventh Amendment’s
requirement that “legal rights [are] to be ascertained and determined” by a jury.
Granfinanciera,
492 U.S. at 41
,
109 S. Ct. at 2790
.
D.
If a plaintiff proves a breach of contract but fails to prove actual damages,
the plaintiff “may recover nominal damages sufficient to cover the costs of
bringing the action.” O.C.G.A. § 13–6–6.
AC-USA established on summary judgment that Silikal breached the GSA.
As already discussed, however, AC-USA failed to prove that it suffered actual
damages as a result of Silikal’s breach. Therefore, AC-USA is entitled to an award
of nominal damages “sufficient to cover the costs of bringing the action.”
O.C.G.A. § 13–6–6.
In sum, AC-USA failed as a matter of law to prove actual damages, and the
$1.5 million award cannot be upheld on any other basis. The District Court
therefore erred in awarding AC-USA damages for breach in its revised final
judgment. We accordingly vacate the award and remand for determination of the
sum of nominal damages to which AC-USA is entitled.
V.
Finally, we address whether AC-USA is entitled to attorney’s fees on its
Contract claim notwithstanding that it failed to prove actual damages. We hold
41
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that it is entitled to attorney’s fees, and we remand to the District Court for
determination of an appropriate sum.
Georgia law permits recovery of attorney’s fees “where authorized by some
statutory provision or by contract.” Smith v. Baptiste,
694 S.E.2d 83
, 87 (Ga.
2010) (citation omitted).
The District Court awarded AC-USA $1,361,415 in attorney’s fees on the
Misappropriation and Contract claims, finding that fees were authorized by both
O.C.G.A. § 10–1–764 and the GSA. Section 10–1–764 permits the court to award
attorney’s fees to the prevailing party where “willful and malicious
misappropriation exists.” Because we hold that AC-USA failed to prove its
Misappropriation claim as a matter of law, it follows that AC-USA is not entitled
to attorney’s fees for that claim under § 10–1–764. However, AC-USA may still
recover attorney’s fees under the GSA as long as it can be considered a “prevailing
party” within the meaning of the GSA’s fee-shifting provision. That provision
states:
If legal proceedings are commenced in connection with this Settlement
Agreement, the Settling Party or Parties that do not prevail in such legal
proceedings shall pay the reasonable attorneys’ fees and other costs and
expenses, including investigation costs, incurred by the prevailing
party in such legal proceedings.
(emphasis added).
42
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To qualify as a prevailing party under a standard contractual fee-shifting
provision, the Georgia Supreme Court has held that a party must obtain “actual
relief on the merits [that] materially alters the legal relationship between the parties
by modifying the defendant’s behavior in any way that directly benefits the
plaintiff.” Magnetic Resonance Plus, Inc. v. Imaging Systems Int’l.,
543 S.E.2d 32
,
36 (Ga. 2001) (citation omitted). An award of nominal damages is sufficient to
make the plaintiff a prevailing party. King v. Brock,
646 S.E.2d 206
, 207 (Ga.
2007).
Because we hold that AC-USA is entitled to nominal damages on its
Contract claim, AC-USA may also recover attorney’s fees as a prevailing party
under the GSA. Accordingly, we vacate the $1,361,415 attorney’s fees award and
remand to the District Court for determination of the sum of fees to which AC-
USA is entitled.
VI.
For the foregoing reasons, we reverse the District Court’s decision denying
Silikal’s motion for judgment as a matter of law on AC-USA’s Misappropriation
claim; vacate the $3 million punitive damages award, $1.5 million damages award,
and $1,361,415 attorney’s fees award; and remand to the District Court for a
determination of the sum of nominal damages and attorney’s fees to which AC-
USA is entitled.
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VACATED AND REMANDED WITH INSTRUCTIONS.
44 |
4,638,816 | 2020-12-02 17:12:18.599667+00 | null | http://www.pacourts.us/assets/opinions/Superior/out/J-S44015-20m - 104621414121116415.pdf | J-S44015-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEPHEN WELLINGTON ELLIS : No. 406 MDA 2020
Appeal from the PCRA Order Entered January 30, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001929-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
STEPHEN WELLINGTON ELLIS : No. 407 MDA 2020
Appeal from the PCRA Order Entered January 30, 2020
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0001930-2015
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2020
The Commonwealth appeals from the trial court’s January 30, 2020
order granting Stephen Wellington Ellis’s petition under the Post Conviction
Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, thereby barring application of
Subchapters H and I of the Sexual Offender Registration and Notification Act
J-S44015-20
(“SORNA II”),1 and vacating Ellis’s designation as a Sexually Violent Predator
(“SVP”).2 After careful review, we reverse in part and affirm in part.
On August 20, 2015, Ellis pled guilty, in the case docketed at CP-67-CR-
1929-2015, to dissemination of child pornography (18 Pa.C.S. § 6312(c)),
possession of child pornography (18 Pa.C.S. § 6312(d)), and criminal use of
a communication facility (18 Pa.C.S. § 7512(a)). These charges were based
on conduct occurring in 2015. That same day, Ellis also pled guilty in a
separate case, docketed at CP-67-CR-1930-2015, to three counts each of
indecent assault of a victim less than 13 years of age (18 Pa.C.S. §
3126(a)(7)) and corruption of minors (18 Pa.C.S. § 6301(a)(1)(ii)). These
convictions were premised on conduct occurring between 2007 and 2015. On
March 4, 2016, Ellis was sentenced to an aggregate term of 2½ to 7 years’
incarceration. In addition, based on his indecent assault convictions, Ellis was
subject to lifetime registration as a Tier III offender under the version of
SORNA in effect at that time (“SORNA I”). See 42 Pa.C.S. § 9799.14(d)(8).
Ellis was also deemed to be an SVP under SORNA I, which required lifetime
registration.
Approximately one year after Ellis was sentenced, our Supreme Court
decided Commonwealth v. Muniz,
164 A.3d 1189
(Pa. 2017), holding that
____________________________________________
1 42 Pa.C.S. §§ 9799.10-9799.42 and 42 Pa.C.S. §§ 9799.51-9799.75,
respectively.
2 42 Pa.C.S. § 9799.58.
-2-
J-S44015-20
the registration requirements of Subchapter H of SORNA I, as applied
retroactively, were punitive under the seven-factor test set forth by the United
States Supreme Court in Kennedy v. Mendoza-Martinez,
372 U.S. 144
(1963). Thus, the Muniz Court deemed SORNA I unconstitutional under the
ex post facto clauses of the United States and Pennsylvania Constitutions.
See Muniz, 164 A.3d at 1223.
After Muniz, a panel of this Court issued Commonwealth v. Butler,
173 A.3d 1212
(Pa. Super. 2017) (“Butler I”). There, we held that the
statutory mechanism for designating a defendant an SVP under SORNA I
violated the United States Supreme Court’s decisions in Alleyne v. U.S.,
570 U.S. 99
(2013),3 and Apprendi v. New Jersey,
530 U.S. 466
(2000).4 We
reasoned that SORNA I required the trial court to make the SVP determination
by “clear and convincing” evidence, rather than the beyond-a-reasonable-
doubt standard and, thus, was unconstitutional. Butler I, 173 A.3d at 1218.
In response to Muniz and Butler I, the Pennsylvania General Assembly
amended SORNA I by enacting Act 10 on February 21, 2018, and Act 29 on
June 12, 2018, which are collectively known as SORNA II. See Act of Feb.
21, 2018, P.L. 27, No. 10 (“Act 10”); Act of June 12, 2018, P.L. 140, No. 29
____________________________________________
3Alleyne holds that “facts that increase mandatory minimum sentences must
be submitted to the jury” and found beyond a reasonable doubt. Id. at 106.
4 Apprendi held that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at
490.
-3-
J-S44015-20
(“Act 29”). SORNA II now divides sex offenders into two subchapters: (1)
Subchapter H, which applies to an offender who committed a sexually violent
offense on or after December 20, 2012 (the date SORNA I became effective);
and (2) Subchapter I, which applies to an individual who committed a sexually
violent offense on or after April 22, 1996, but before December 20, 2012,
whose period of registration has not expired, or whose registration
requirements under a former sexual offender registration law have not
expired.
Pursuant to SORNA II, Ellis’s indecent assault conviction became a
Subchapter I offense requiring 10 years of registration, rather than the
lifetime registration requirement that his conviction triggered under SORNA I.
See 42 Pa.C.S. § 9799.55(a)(1)(i)(A). His SVP designation, however,
continues to carry a lifetime registration requirement under Subchapter I of
SORNA II. See 42 Pa.C.S. § 9799.55(b)(3). Ellis is also subject to registration
requirements under Subchapter H, specifically a 15-year registration
requirement for his Tier I conviction of disseminating child pornography, and
a 25-year registration period for his Tier II conviction of possession of child
pornography. See 42 Pa.C.S. § 9799.14(b)(9), (c)(4).
On June 13, 2019, Ellis filed a pro se PCRA petition challenging his
registration requirements and SVP designation. The court appointed counsel,
who filed an “Amended Post Conviction Relief Act Petition and/or Petition for
Writ of Habeas Corpus.” Therein, Ellis first claimed that his petition was timely
because his registration requirements were part of his sentence, which had
-4-
J-S44015-20
changed with the passage of Acts 10 and 29, thus “restart[ing] the clock for
purposes of challenging that sentence.” Amended PCRA Petition, 8/9/19, at
5. Ellis also argued that Subchapters I and H of SORNA II are both punitive
for the same reasons that the Muniz Court had deemed punitive Subchapter
H of SORNA I. Id. at 6. Accordingly, he insisted that applying SORNA II
retroactively to him violates the ex post facto provisions of the United States
and Pennsylvania Constitutions. Ellis also averred that both Subchapters I
and H contain an irrebuttable presumption of dangerousness that violates his
constitutional right to reputation. Id. at 8-10. Finally, he insisted that his
SVP designation is unconstitutional under our holding in Butler I. Id. at 11-
12.
On January 28, 2020, the trial court filed an order and accompanying
opinion granting Ellis’s petition. Notably, the court accepted Ellis’s argument
that the passage of SORNA II constituted the imposition of a new sentence
that reset the PCRA’s timeliness clock. See Trial Court Opinion (TCO),
1/28/20, at 6-7. The court then concluded that Subchapters I and H are both
punitive under the Mendoza-Martinez factors and cannot be applied to Ellis,
and that Ellis’s SVP designation is unconstitutional under Butler I. Id. at 7-
15.
The Commonwealth filed a timely notice of appeal at each docket
number, which this Court consolidated. The Commonwealth also complied
with the PCRA court’s order to file a Pa.R.A.P. 1925(b) concise statement of
-5-
J-S44015-20
errors complained of on appeal. Herein, the Commonwealth states three
issues for our review:
1. Whether the PCRA/Habeas court erred in granting relief as the
court lacked jurisdiction to hear this matter, as the petition is
jurisdictionally untimely and whether titled as a PCRA or Habeas
petition, the jurisdictional timeliness requirements of the PCRA
apply?
2. Whether the PCRA court erred in granting [Ellis] relief, as
imposition of applicable SORNA registration is not
unconstitutional?
3. Whether the PCRA court erred in granting [Ellis] relief, as
imposition of [SVP] status and conditions is not unconstitutional?
Commonwealth’s Brief at 2.
The Commonwealth’s first two issues are resolved by our Supreme
Court’s recent decision in Commonwealth v. Lacombe,
234 A.3d 602
(Pa.
2020), and this Court’s subsequent opinion in Commonwealth v. Smith, --
A.3d --, 1011 MDA 2019,
2020 WL 5755494
(Pa. Super. filed Sept. 8, 2020).
First, in Lacombe, the Court held that the registration requirements in
Subchapter I of SORNA II do not constitute criminal punishment. Lacombe,
234 A.3d at 626.
In addition, the Lacombe Court expressly declined “to find the
PCRA, or any other procedural mechanism ... the exclusive
method for challenging sexual offender registration
statutes[.]” Lacombe[, 234 A.3d at 618]. According to the
Court, an offender’s requirements change frequently and may be
retroactively applicable. See id. [at 617]. Thus, the strict
jurisdictional requirements of the PCRA render it unsuitable,
because many registrants will be ineligible for relief on timeliness
grounds or because their criminal sentence has expired while their
registration requirements continue. See id.
-6-
J-S44015-
20 Smith, 1011
MDA 2019 at *3. After Lacombe, this Court concluded in Smith
that, because “[n]on-punitive, administrative requirements are merely
collateral consequences of a criminal conviction[,] … a challenge to the
requirements mandated by Subchapter I of SORNA II pertains to a collateral
consequence of one’s criminal sentence and does not fall within the purview
of the PCRA.”
Id.
(citations omitted). Accordingly, the Smith panel held that
a petitioner’s “substantive claims challenging the application of Subchapter I
of SORNA II’s lifetime registration requirements are not cognizable under the
PCRA and, thus, not subject to its time-bar.”
Id.
Based on Lacombe and Smith, the requirements of Subchapter I are
not criminal sanctions, and the applicability of SORNA II may be challenged
outside the PCRA. Therefore, while the trial court erroneously concluded that
Ellis was effectively ‘resentenced’ when SORNA II was enacted, it did not err
in finding that it had jurisdiction to address the merits of his claims for the
reasons set forth in Lacombe and Smith.5 However, Lacombe also leads us
to conclude that the trial court was incorrect in deciding that Subchapter I is
punitive. The Lacombe Court clearly held that Subchapter I does not
constitute criminal punishment. Accordingly, the registration requirements
____________________________________________
5 It is well-settled that “this Court may affirm the decision of the PCRA [c]ourt
if it is correct on any basis.” Commonwealth v. Hutchins,
760 A.2d 50
, 54
(Pa. Super. 2000) (citing Commonwealth v. Pursell,
749 A.2d 911
, 917 (Pa.
2000); Commonwealth v. Ahlborn,
683 A.2d 632
, 641 n.14 (Pa. Super.
1996)).
-7-
J-S44015-20
set forth in Subchapter I may be retroactively applied to Ellis, and we reverse
the court’s order to the extent that it vacates the application of that provision
to Ellis.
In the Commonwealth’s third issue, it contends that the trial court erred
by vacating Ellis’s SVP designation. Again, we agree. The court concluded
that Ellis’s SVP designation must be vacated pursuant to Butler I, but shortly
after the trial court filed its order and opinion in this case, our Supreme Court
overruled Butler I in Commonwealth v. Butler,
226 A.3d 972
, 993 (Pa.
2020) (“Butler II”). The Butler II Court determined that the registration,
notification, and counseling (“RNC”) requirements applicable to SVPs under
Subchapter H are non-punitive, explaining:
Although we recognize the RNC requirements impose affirmative
disabilities or restraints upon SVPs, and those requirements have
been historically regarded as punishment, our conclusions in this
regard are not dispositive on the larger question of whether the
statutory requirements constitute criminal punishment. This is
especially so where the government in this case is concerned with
protecting the public, through counseling and public notification
rather than deterrent threats, not from those who have been
convicted of certain enumerated crimes, but instead from those
who have been found to be dangerously mentally ill. Under the
circumstances, and also because we do not find the RNC
requirements to be excessive in light of the heightened public
safety concerns attendant to SVPs, we conclude the RNC
requirements do not constitute criminal punishment.
Butler II, 226 A.3d at 992–93 (citation omitted).
While here, Ellis was deemed an SVP under Subchapter I, this Court has
observed that “Subchapter I contains less stringent reporting requirements
than Subchapter H….” Commonwealth v. Alston,
212 A.3d 526
, 529 (Pa.
-8-
J-S44015-20
Super. 2019). Because Subchapter I’s RNC requirements applicable to SVPs
are less burdensome than are Subchapter H’s RNC requirements for SVPs, it
must be the case that Subchapter I’s RNC requirements for SVPs also do not
constitute criminal punishment, given our Supreme Court’s decision in Butler
II.
In sum, pursuant to Lacombe and Smith, the trial court had jurisdiction
to address Ellis’s substantive challenges to the application of SORNA II.
Because Lacombe holds that the registration requirements of Subchapter I
are not punitive and may, therefore, be retroactively applied to Ellis, the court
erred by vacating Ellis’s registration requirements under Subchapter I.
Additionally, Butler II and Alston establish that Ellis’s SVP designation is
constitutional. Accordingly, we reverse the court’s order to the extent that it
vacates Ellis’s Subchapter I registration requirements and his SVP status
under that provision.
However, to the extent the court’s order also vacates Ellis’s Subchapter
H requirements, we must affirm. As Ellis observes, in his amended
PCRA/habeas petition, he presented challenges to the imposition of both
Subchapter I and Subchapter H, and the trial court addressed the propriety of
both provisions in its opinion. See Ellis’s Brief at 17; TCO at 13-14.
Ultimately, the court concluded that Subchapter H is also punitive, and it
vacated Ellis’s registration requirements under that provision for his Tier I and
Tier III convictions of disseminating child pornography and possession of child
pornography. See TCO at 13-14. Ellis contends, and we agree, that the
-9-
J-S44015-20
Commonwealth has failed to raise any challenge to the court’s Subchapter H
decision on appeal. See Ellis’s Brief at 17 (stating that, “[i]n this appeal, the
Commonwealth has challenged the court’s barring of Subchapter I but has
asserted no argument as to the vacatur of Ellis’[s] Subchapter H
obligations[,]” thus waiving it for appellate review) (emphasis in original). We
agree with Ellis that because the Commonwealth has not asserted a challenge
to the court’s Subchapter H determination, it has waived that claim on appeal.
See Pa.R.A.P. 2116(a), 2119(a); Commonwealth v. McGill,
832 A.2d 1014
,
1018 n.6 (Pa. 2003) (finding waiver where the appellant abandoned claim on
appeal). Accordingly, we affirm the court’s order to the extent that it vacates
Ellis’s registration requirements under Subchapter H.6
Order reversed in part, affirmed in part. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2020
____________________________________________
6 We express no opinion on the propriety of the trial court’s rationale for
deeming Subchapter H punitive, or its conclusion that Subchapter H cannot
be applied to Ellis.
- 10 - |
4,654,753 | 2021-01-26 21:01:04.427259+00 | null | https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2020cv0763-18 | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
UAB SKYROAD LEASING, )
)
Petitioner, )
)
v. ) Case No. 20-cv-00763 (APM)
)
OJSC TAJIK AIR, )
)
Respondent. )
_________________________________________ )
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner UAB Skyroad Leasing (“Skyroad”) brings this action to enforce a 2018 arbitral
award against Respondent OJSC Tajik Air (“Tajik Air”) issued by the Vilnius Court of
Commercial Arbitration (“VCCA”) in Vilnius, Lithuania. The VCCA tribunal awarded Skyroad
$20,216,425.54 in damages, and €78,700.58 and $6,773.60 in legal costs, plus interest. Tajik Air
has yet to pay any amount of the award, and appears in this matter to contest the court’s jurisdiction
over it. Tajik Air contends that personal jurisdiction is lacking because (1) Skyroad failed to
execute service of process consistent with the requirements of the Foreign Sovereign Immunities
Act (“FSIA”), and (2) jurisdiction over Tajik Air cannot be exercised consistent with the
requirements of the Due Process Clause of the Fifth Amendment. Tajik Air demands dismissal of
Skyroad’s petition.
Under the FSIA, Tajik Air is considered an instrumentality of a foreign state—the Republic
of Tajikistan is the company’s sole shareholder. As an instrumentality, Tajik Air is presumed to
be separate from its foreign-state owner and, under Circuit precedent, enjoys the protections of the
Due Process Clause of the Fifth Amendment. That presumption is rebuttable, however, and can
be overcome by a showing that Tajikistan completely dominates Tajik Air or that Tajik Air is an
agent of the sovereign, or that recognizing Tajik Air as a separate entity would work fraud or
injustice. Skyroad attempts to make these showings, but its evidence falls short. It demonstrates
neither an unusual degree of control by Tajikistan over Tajik Air nor that recognizing separateness
work fraud or injustice. Accordingly, for the court to exercise personal jurisdiction over Tajik Air
consistent with the Due Process Clause, the company must have sufficient minimum contacts with
the United States. The record reveals none. Therefore, the court grants Tajik Air’s motion to
dismiss. The court does not reach Tajik Air’s claim of improper service.
II. BACKGROUND
A. Factual Background
1. The Aircraft Leases
Respondent Tajik Air is an airline company wholly owned by the Republic of Tajikistan
(“Tajikistan”). See Compl./Pet. to Confirm, Recognize, & Enforce Foreign Arb. Award,
ECF No. 1 [hereinafter Pet.], ¶ 8. Formerly a state-owned enterprise known as “State Unitary
Aviation Enterprise Tajik Air,” id., the company was restructured as an open joint stock company
by government resolution on December 30, 2009, see Resp’t’s Mot. to Dismiss, ECF No. 12
[hereinafter Resp’t’s Mot.], Decl. of Dilshod Ismatullozoda, ECF No. 12-2 [hereinafter
Ismatullozoda Decl.], Ex. A, ECF No. 12-3 [hereinafter Articles of Ass’n], ¶ 1. The government
of Tajikistan retained 100 percent ownership of Tajik Air’s voting shares. See id. ¶ 8.
Shortly before the State Unitary Aviation Enterprise Tajik Air was privatized, in September
2009, it entered into two identical lease agreements with a Lithuanian company called AB Avia
Asset Management for the lease of two Boeing aircraft. See Pet. ¶¶ 15, 17. The agreements
required Tajik Air to pay monthly rent of $149,000 for each aircraft and to return the two aircraft
2
at the end of the 60-month lease period. Id. ¶ 17. On November 2, 2010, AB Avia Asset
Management transferred all rights and obligations under the lease agreements to UAB AviaAM
B03, which later became UAB Skyroad Leasing. Id. ¶ 16.
As relevant here, the lease agreements contained an arbitration clause providing that “[a]ny
dispute, controversy or claim arising out of or relating to th[e] Finance Lease shall be settled by
Arbitration in the Vilnius Court of Commercial Arbitration in accordance with its Rules.” Id. ¶ 19;
see Mem. of P. & A. in Supp. of Pet. to Confirm Award, ECF No. 4, Decl. of Michael S. Cryan,
ECF No. 4-1 [hereinafter Cryan Decl.], Ex. B, Aircraft Finance Lease Agreement, ECF No. 4-3
[hereinafter Lease Agreement], at 101. The arbitration clause further identified Vilnius, Lithuania,
as the seat of arbitration and called for all proceedings to be conducted in English, using the
substantive law of the Republic of Lithuania. Pet. ¶ 19; Lease Agreement at 101.
2. The Arbitration Award
In 2013, after Tajik Air started falling behind on the monthly lease payments, Skyroad
initiated arbitration proceedings pursuant to the agreements, resulting in an award of $2,824,000
plus interest. See Cryan Decl., Ex. A., Final Arb. Award, ECF No. 4-2 [hereinafter Award], ¶ 7.
When Tajik Air remained delinquent on payments and failed to return the aircraft at the end of the
leases, Skyroad initiated a second arbitration proceeding with the VCCA tribunal on September 5,
2017, whose ultimate award is the subject of this action. See id. ¶ 8; Pet. ¶ 21.
Tajik Air, at first, appeared before the arbitral tribunal. On October 31, 2017, represented
by the Head of the Legal Department of Tajikistan’s Ministry of Transport, Zafar Khafizov, see
Pet. ¶ 22, Tajik Air filed a statement of counterclaim challenging the tribunal’s jurisdiction over
the dispute, see Award ¶ 39. Specifically, Tajik Air argued that the tribunal should declare the
arbitration agreement invalid under Article 12(3) of the Law on Commercial Arbitration of the
3
Republic of Lithuania. See id. ¶¶ 64–65. Article 12(3) provides that disputes involving “a state
or municipal enterprise or an institution or organisation” may not be referred to arbitration without
the consent of the founder of such an entity. Id. ¶ 71. Tajik Air argued that the arbitration
agreements in the Skyroad leases were unenforceable because the company was a state enterprise
at the time it entered the agreement, and it never obtained the consent of its founder, the
government of Tajikistan, to enter the arbitration agreement. See id. ¶ 65.
But Tajik Air’s appearance before the tribunal was short lived. Mr. Khafizov failed to pay
the required fees associated with the counterclaim on behalf of Tajik Air. See id. ¶¶ 46, 52, 65–66.
Indeed, he appears to have absconded with those funds and has since fled the country. See Reply
Mem. in Supp. of Resp’t’s Mot. to Dismiss, ECF No. 14 [hereinafter Resp’t’s Reply], Second
Decl. of Dilshod Ismatullozoda, ECF No. 14-1 [hereinafter 2d Ismatullozoda Decl.], ¶ 10–11. As
a consequence, the arbitral tribunal did not consider Tajik Air’s counterclaim. See Award ¶ 66.
Nor did Tajik Air otherwise contest Skyroad’s claims—it did not appear at the merits hearing held
before the VCCA tribunal on March 12, 2018. Only Petitioner was in attendance. See Award
¶¶ 31, 59.
Although Tajik Air’s counterclaim was not formally before it, in the Final Award the
tribunal nevertheless sua sponte considered Tajik Air’s jurisdictional argument but rejected it on
two primary grounds. See id. ¶¶ 64–66, 68–82. First, the tribunal found that the restrictions of
Article 12(3) of the Law on Commercial Arbitration were “designed to apply to [] Lithuanian State
entities and institutions, [ ] not [] foreign ones” like Tajik Air, which was “an entity established
under the laws of the Republic of Tajikistan.” Id. ¶ 72. Second, even if Tajik law limited Tajik
Air’s authority to enter arbitration agreements, the tribunal found it to be a widely recognized
principle of international commercial arbitration that a state enterprise may not invoke national
4
law to question the jurisdiction of an arbitration tribunal or the right of the entity to arbitrate.
See id. ¶ 74 & n.29; Cryan Decl., Ex. C, Stmt. of Appeal of Tajik Air, ECF No. 4-4 [hereinafter
Stmt. of Appeal], at ¶ 6. Accordingly, the tribunal held that Article 12(3) had no bearing on the
validity of the arbitration agreement. See Award ¶ 75. On April 25, 2018, the tribunal awarded
Skyroad $20,216,425.54 in damages at eight percent interest from September 5, 2017, plus two
awards of legal costs of €78,700.58 and $6,773.56. See id. ¶ 165; Pet. ¶¶ 29–31.
Following the tribunal’s decision, Tajik Air initiated annulment proceedings before the
Court of Appeal of Lithuania. See Pet. ¶ 34; Stmt. of Appeal. There, Tajik Air renewed its
jurisdictional arguments grounded in Article 12(3) of the Law on Commercial Arbitration, arguing
that the VCCA tribunal misapplied the law and lacked jurisdiction over the dispute. See Stmt. of
Appeal ¶¶ 7–27. The Court of Appeal rejected Tajik Air’s arguments, upheld the legal findings of
the VCCA tribunal, and affirmed the award on July 31, 2018. See Pet. ¶ 34; Cryan Decl., Ex. D,
Decision of the Court of Appeals of Lithuania, ECF No. 4-5, ¶¶ 45, 48.
B. Procedural Background
After extensive efforts to get Tajik Air to pay the award to no avail, see Cryan Decl., Ex. J.,
Aff. of Audrius Dzikevičius, ECF No. 4-11, Skyroad initiated this action on March 18, 2020, to
confirm, recognize, and enforce the arbitral award in the United States, see Pet. On March 23,
2020, Petitioner filed an emergency motion requesting authorization to serve process on Tajik Air
through alternative means pursuant to
28 U.S.C. § 1608
(b)(3)(C). See Emergency Mot. to Serve
Resp. via Alt. Mode of Service, ECF No. 7. As pertinent here, that provision authorizes service
of process upon an instrumentality of a foreign state, “if reasonably calculated to give actual notice,
by delivery of a copy of the summons and complaint . . . as directed by order of the court consistent
with the law of the place where service is to be made.”
28 U.S.C. § 1608
(b)(3)(C). The court
5
granted Skyroad’s motion and authorized it to serve Tajik Air via one or all of four specific
alternative methods of service, or by “any other method ‘reasonably calculated to give actual
notice.’” Order, ECF No. 8. On March 24, 2020, Skyroad filed a Declaration of Service stating
that it had caused a copy of the Summons and Petition to be sent to Tajik Air at various mail and
email addresses. See Decl. of Service, ECF No. 10.
On May 26, 2020, Tajik Air moved to dismiss the Petition on two grounds: inadequate
service and lack of personal jurisdiction. See Resp’t’s Mot. to Dismiss, ECF No. 12 [hereinafter
Resp’t’s Mot.], at 1. Specifically, Tajik Air argues that the alternative modes of service employed
by Skyroad are not permitted under section 1608(b)(3)(C) because they are not “consistent with
the law of the place,” Tajikistan, “where service is to be made”; accordingly, the court lacks
personal jurisdiction over Tajik Air under section 1330(b) of the FSIA,
28 U.S.C. § 1330
(b)
(“Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the
district courts have [subject matter] jurisdiction . . . [and] where service has been made. . . . ”).
See Resp’t’s Mot., Mem. of P. & A. in Supp. of Resp’t’s Mot. to Dismiss, ECF No. 12-1
[hereinafter Resp’t’s Br.], at 1. Additionally, Tajik Air contends that even if service was properly
effected, it lacks sufficient minimum contacts with the United States to satisfy the Fifth
Amendment’s Due Process Clause.
Id.
The court heard oral argument on the motion on January
12, 2021. See Minute Order, Jan. 12, 2021.
II. LEGAL STANDARD
On a motion to dismiss under Rule 12(b)(2), the plaintiff bears the burden of establishing
a factual basis for personal jurisdiction. Crane v. N.Y. Zoological Soc’y,
894 F.2d 454
, 456
(D.C. Cir. 1990). A plaintiff can survive a motion to dismiss if she makes a “prima facie” showing
of personal jurisdiction. Edmond v. U.S. Postal Serv. Gen. Counsel,
949 F.2d 415
, 424 (D.C. Cir.
6
1991). “[T]o establish a prima facie case, plaintiffs are not limited to evidence that meets the
standards of admissibility required by the district court. Rather, they may rest their argument on
their pleadings, bolstered by such affidavits and other written materials as they can otherwise
obtain.” Mwani v. bin Laden,
417 F.3d 1
, 7 (D.C. Cir. 2005). The court resolves all factual
discrepancies in the record in favor of the plaintiff. See Crane,
894 F.2d at 456
.
In cases arising under the FSIA, “[t]o the extent that jurisdiction depends on particular
factual propositions . . . , the plaintiff must, on a challenge by the defendant, present adequate
supporting evidence.” Agudas Chasidei Chabad of U.S. v. Russian Federation,
528 F.3d 934
, 940
(D.C. Cir. 2008); see also Foremost-McKesson, Inc. v. Islamic Republic of Iran,
905 F.2d 438
,
447 (D.C. Cir. 1990) (“[T]he plaintiff bears the burden of asserting facts sufficient to withstand a
motion to dismiss regarding [an] agency relationship [under the FSIA].”). In such cases, “plaintiffs
must demonstrate the jurisdictional prerequisites by a preponderance of the evidence before the
case goes forward.” Agudas Chasidei Chabad,
528 F.3d at 939
; see also Owens v. Republic of
Sudan,
864 F.3d 751
, 784 (D.C. Cir. 2017) (applying preponderance of evidence standard to
jurisdictional question under the FSIA), vacated on other grounds sub nom., Opati v. Sudan, 590
U.S. ___,
140 S. Ct. 1601
(2020); Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela,
932 F.3d 126
, 145–46 (3d Cir. 2019) (articulating preponderance-of-the-evidence standard for
jurisdictional inquiries involving the presumption of separateness).
III. DISCUSSION
The FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in the
courts of this country.” Saudi Arabia v. Nelson,
507 U.S. 349
, 355 (1993) (internal quotation
marks omitted). The statute defines a “foreign state” to “include[] a political subdivision of a
foreign state or an agency or instrumentality of a foreign state.”
28 U.S.C. § 1603
(a). To qualify
7
as “[a]n ‘agency or instrumentality of a foreign state,’” the entity must be (1) “a separate legal
person, corporate or otherwise”; (2) “an organ of a foreign state or political subdivision thereof, or
a majority of whose shares or other ownership interest is owned by a foreign state or political
subdivision thereof”; and (3) “neither a citizen of a State of the United States . . . nor created under
the laws of any third country.”
Id.
§ 1603(b). Here, the parties agree that Tajik Air, which is
incorporated under the laws of Tajikistan and fully owned by the state, qualifies as an
instrumentality of a foreign state. See Pet. ¶ 8 (alleging that “Tajik Air is thus to be treated as an
agency or instrumentality of the foreign state of the Republic of Tajikistan”); Resp’t’s Br. at 11
(claiming to be a “‘typical government instrumentality’”); Mem. in Opp’n to Resp’t’s Mot. to
Dismiss, ECF No. 13 [hereinafter Pet’r’s Opp’n], at 1 (noting that Respondent admits it is an
agency or instrumentality).
Under section 1330(b) of the FSIA, “[p]ersonal jurisdiction over a foreign state shall exist
as to every claim for relief over which the district courts have [subject matter] jurisdiction . . .
[and] where service has been made.”
28 U.S.C. § 1330
(b). 1 Skyroad contends that the
jurisdictional inquiry begins and ends with these statutory requirements. 2 Relying on Price v.
Socialist People’s Libyan Arab Jamahiriya, Skyroad argues that the court need not undertake any
constitutional jurisdictional inquiry because Tajik Air has no Fifth Amendment due process rights
because it is, by definition, a “foreign state” under the FSIA. See Pet’r’s Opp’n at 2–3, 18–22
1
There is no dispute that the court has subject matter jurisdiction over this matter under
28 U.S.C. § 1605
(a)(6)(B),
the exception to sovereign immunity for any action brought to confirm an arbitration award that “is or may be governed
by a treaty or other international agreement in force for the United States calling for the recognition and enforcement
of arbitral awards.” See Pet’r’s Opp’n at 2 (“This Court has subject matter jurisdiction because Tajik Air is a foreign
agent or instrumentality of Tajikistan” and this is an “action to confirm . . . [a] New York Convention arbitral
award[].”); Resp’t’s Br. at 7 (noting proper service as the missing component of personal jurisdiction under
28 U.S.C. § 1330
(b)).
2
As noted at the outset, the court does not reach Tajik Air’s argument that Skyroad’s service efforts fell short of the
requirements of the FSIA.
8
(citing Price, 294 F.3d at 96 (“[F]oreign states are not ‘persons’ protected by the Fifth
Amendment.”)). But that argument is outdated and patently contradicts a long line of D.C. Circuit
precedent that is binding on this court.
In TMR Energy Ltd. v. State Property Fund of Ukraine, the D.C. Circuit made clear that
the holding in Price “applies only to ‘an actual foreign government.’”
411 F.3d 296
, 300
(D.C. Cir. 2005). Where a case involves an “agency or instrumentality” of a foreign state,
however, courts afford the instrumentality a “presumption of separateness” from the foreign
sovereign. See GSS Grp. Ltd. v. Nat’l Port Auth.,
680 F.3d 805
, 814 (D.C. Cir. 2012); see also
First Nat’l City Bank v. Banco Para El Comercio Exterior de Cuba (Bancec),
462 U.S. 611
,
626–27 (1983) (“[G]overnment instrumentalities established as juridical entities distinct and
independent from their sovereign should normally be treated as such.”), abrogated on other
grounds by
28 U.S.C. § 1610
. For purposes of personal jurisdiction, that presumption means that,
unless rebutted, the instrumentality is entitled to due process protection under the Fifth
Amendment. See TMR Energy,
411 F.3d at 301
. And such protection means that, unless the
instrumentality has sufficient minimum contacts with the United States, the court lacks personal
jurisdiction over it. See GSS Grp.,
680 F.3d at
810 n.3 (“In actions under the Foreign Sovereign
Immunities Act, the relevant frame of reference for the minimum contacts analysis is the United
States as a whole, rather than the specific jurisdiction in which the suit is filed (here, the District
of Columbia).”).
In this case, it is not hard to understand why Tajik Air is entitled to such a presumption of
separateness. The Supreme Court’s decision in Bancec explains why. There, the Court observed:
A typical government instrumentality, if one can be said to exist, is
created by an enabling statute that prescribes the powers and duties
of the instrumentality, and specifies that it is to be managed by a
9
board selected by the government in a manner consistent with the
enabling law. The instrumentality is typically established as a
separate juridical entity, with the powers to hold and sell property
and to sue and be sued. Except for appropriations to provide capital
or to cover losses, the instrumentality is primarily responsible for its
own finances. The instrumentality is run as a distinct economic
enterprise; often it is not subject to the same budgetary and
personnel requirements with which government agencies must
comply.
Bancec,
462 U.S. at 624
. Tajik Air certainly seems to fit this bill. It was restructured from a state
enterprise to an open joint stock company by government resolution in 2009. See Articles of Ass’n
¶ 1. According to its Articles of Association, the company is authorized to open bank accounts,
operates on an independent balance sheet, and may “acquire and exercise its proprietary rights and
personal non-property rights, incur obligations and litigate.”
Id.
¶¶ 11–12. These features are the
hallmark of separateness from a sovereign.
Skyroad concedes that Tajik Air lacks sufficient minimum contacts with the United States
to satisfy the Due Process Clause. See Pet’r’s Opp’n at 22. Therefore, the dispositive question for
the court is whether Skyroad has produced sufficient evidence to overcome the presumption of
separateness afforded Tajik Air under Bancec. See Foremost-McKesson, Inc.,
905 F.2d at 447
(“[T]he plaintiff bears the burden of asserting facts sufficient to withstand a motion to dismiss
regarding the agency relationship.”). Bancec provides the “exclusive means for determining
whether [the presumption of separateness has been overcome and accordingly whether] a foreign,
state-owned corporation is a ‘person’ for Fifth Amendment purposes.” GSS Grp.,
680 F.3d at 816
.
Skyroad may make such a showing in one of two ways: 1) by demonstrating that Tajikistan “so
extensively control[s]” Tajik Air that “a relationship of principal and agent is created,” Bancec,
462 U.S. at 629
, or 2) by showing that “recognition of [Tajik Air] as an entity apart from the state
‘would work fraud or injustice,’” Transamerica Leasing, Inc. v. La Republica de Venezuela, 200
10 F.3d 843
, 848 (D.C. Cir. 2000) (quoting Bancec,
462 U.S. at 629
). The court discusses these
exceptions to the presumption of separateness in turn and concludes that Skyroad has failed to
carry its burden as to either.
A. Extensive Control
In Transamerica Leasing, Inc. v. La Republica de Venezuela, the D.C. Circuit identified
“two distinct contexts” in which “[c]ontrol by the sovereign is relevant” to the inquiry of whether
Bancec’s principal-agent exception is satisfied. 200 F.3d at 848–49. First, the court explained,
“control is relevant when it significantly exceeds the normal supervisory control exercised by any
corporate parent over its subsidiary,” such that it amounts to “complete domination.” Id. at 848.
In such circumstances, there is no meaningful distinction between the sovereign and its
instrumentality; “they act as one.” Id.
The second relevant context is “when the sovereign exercises its control in such a way as
to make the instrumentality its agent.” Id. at 849. “The relationship of principal and agent depends
. . . upon the principal having ‘the right to control the conduct of the agent with respect to matters
entrusted to [the agent].” Id. (quoting Restatement (Second) of Agency § 14 (1958)). How much
control a foreign state must exert over an instrumentality before a principal-agent relationship is
recognized defies precise line drawing. See id. (“Courts have long struggled, often with confusing
results, to explain how much control is required before parent and subsidiary may be deemed
principal and agent.”); cf. Berkey v. Third Ave. Ry. Co.,
155 N.E. 58
, 61 (N.Y. 1926) (“The whole
problem of the relation between parent and subsidiary corporations is one that is still enveloped in
the mists of metaphor.”). The D.C. Circuit has stated, however, that “at a minimum” the
“relationship of principle and agent does not obtain unless” the following four factors are present:
11
[1] the parent has manifested its desire for the subsidiary to act upon
the parent’s behalf, [2] the subsidiary has consented so to act, [3] the
parent has the right to exercise control over the subsidiary with
respect to matters entrusted to subsidiary, and [4] the parent
exercises its control in a manner more direct than by voting a
majority of the stock in the subsidiary or making appointments to
the subsidiary’s Board of Directors.
Transamerica Leasing, 200 F.3d at 849.
Skyroad offers a host of facts that it claims show that Tajikistan’s control over Tajik Air
goes beyond that of a typical instrumentality. See Pet’r’s Opp’n at 23–26; Hr’g Tr. (draft), Jan.
12, 2021 [hereinafter Hr’g Tr.], at 41–46. These facts, Skyroad asserts, demonstrate that Tajikistan
so extensively controls Tajik Air that the company lacks a distinct identity or, alternatively, that it
is a government agent. See, e.g., Pet’r’s Opp’n at 28 (“Tajik Air is one and the same as the foreign
state.”); id. at 22–23 (“Tajik Air is an agent of the foreign state of Tajikistan.”); id. at 27–28 (citing
Tajikistan’s “complete domination” over Tajik Air). These facts may fairly be grouped into two
primary categories: 1) Tajik Air’s corporate structure and economic relationship with the
government of Tajikistan, and 2) Tajik Air’s actions in the underlying arbitration. Hr’g Tr. at 41–
46.
1. Corporate Structure and Economic Relationship with the State
Skyroad argues that the following facts overcome the presumption of separateness between
Tajik Air and the state: 1) the government of Tajikistan is the company’s founder and owns 100%
of its voting shares; 2) “the Government makes decisions on disbursement of dividends or profits
to the Republic of Tajikistan”; 3) the company’s “Director General is appointed and dismissed by
the State”; 4) the Supervisory Board of the company, which appears to function as a board of
directors, includes senior government officials, including the Prime Minister; 5) the government
is “solely responsible for the purchase, lease, and funding of aircraft”; 6) Tajik Air is funded by
12
the government; and 7) the government has reduced Tajik Air’s debts through tax offsets for Tajik
Air’s third-party creditors. Pet’r’s Opp’n at 24; Hr’g Tr. at 41–42, 45–46. These facts, taken as a
whole, fall short of overcoming the presumption that Tajik Air is separate from its sovereign
owner.
The first and third facts—Tajikistan’s 100% ownership control and its authority to appoint
and fire the company’s Director General—“are relevant but as a matter of law do not by themselves
establish the required control.” Transamerica Leasing, 200 F.3d at 851. That was the conclusion
of the D.C. Circuit in Transamerica Leasing when confronted with similar claimed indicia of
control. There, the court found that the government of Venezuela’s stock ownership and its power
to appoint the company’s Board of Directors and senior executives, alone, did not “establish the
required control.” Id.; see also Foremost-McKesson,
905 F.2d at 448
(“Majority shareholding and
majority control of a board of directors, without more, are not sufficient to establish a relationship
of principal to agent under FSIA.”).
The second and fifth facts—the government’s role in making disbursements of dividends
or profits and its authority over the financing and acquisition of aircraft—also do not move the
needle. See Articles of Ass’n ¶ 32 (stating that the “decision on payment and amount of dividends
from the annual shares of the Company should be made by the Founder according to the procedure
established by legislation of the Republic of Tajikistan”), id. ¶ 39 (granting the sole shareholder
“exclusive competence” over “making decision on approval of transactions to the extent stipulated
by the Legislation, including the agreements on purchase and lease of the aircraft and receiving of
bank loans”). That Tajikistan has the final say in distributing dividends is hardly a surprise given
its sole shareholder status. “Indeed, it is a ‘necessary corollary’ of the settled principle that a state
and its instrumentality are presumed to be separate that the ‘sovereign . . . may derive benefits
13
from’ its ownership of a state corporation ‘yet still avoid amenability to suit in United States
courts.’” OGI Grp. Corp. v. Oil Projects Co. of Ministry of Oil, No. 19-cv-2619 (APM),
2020 WL 6342886
, at *6 (D.D.C. Oct. 29, 2020) (quoting DRC, Inc. v. Republic of Honduras,
71 F. Supp. 3d 201
, 218 (D.D.C. 2014)). Nor does the sovereign’s role in approving the acquisition and
financing of aircraft demonstrate a lack of separateness. See Seijas v. Republic of Argentina, No.
4-cv-400 (TPG),
2009 WL 10700009
, at *2 (S.D.N.Y. Aug. 19, 2009) (“The role of [government]
officials in approving airplane purchases and other large investments in the airline does not amount
to the type of day-to-day control necessary to make an alter ego finding.”). The D.C. Circuit
recognized as much in Transamerica Leasing, where it rejected as evidence of dominant control
that the state had approved the sale of three vessels owned by a state-owned shipping company,
Compañia Anonima Venezolana de Navegación (CAVN). See 200 F.3d at 851. The court
observed that the state’s authorization to sell a portion of CAVN’s fleet was part of a “massive
restructuring” and thus “hardly qualifie[d]” as the type of control over CAVN’s “‘day-to-day’
business” that might indicate a principal-agent relationship. Id. Similarly here, that Tajikistan
has reserved unto itself the last word in making an extraordinary expenditure like the purchase of
aircraft does not exceed the normal supervisory control one would expect from a sole shareholder,
nor does it represent control over ordinary day-to-day business decisions.
The sixth and seventh facts—Tajikistan’s funding of Tajik Air and its reduction of the
company’s debt through state action—also do not chip away at Tajik Air’s separateness. As a
threshold matter, the evidence presented that Tajikistan directly finances Tajik Air’s operations is
weak. Skyroad cites to a government resolution, titled “Special Programme of State Support to
the Public Limited Liability Company Tajik Air for 2018-2013,” adopted in September 2018, for
that proposition that the sovereign is “solely responsible” for the “funding of aircraft.” See Pet’r’s
14
Opp’n at 24 (citing Cryan Decl., Ex. E., ECF No. 4-6 [hereinafter Resolution]). But that is not
what the resolution says. Rather, it states that funds needed to purchase modern aircraft “shall be
attracted in coordination with the Government of the Republic of Tajikistan and the Supervisory
Board of the public limited liability company Tajik Air.” Resolution ¶ 12 (emphasis added).
Elsewhere, the Resolution expressly contemplates that such funding would come from
international lenders and would not be guaranteed by the state. Id. ¶ 49 (stating that to secure eight
leased aircraft the “Company [must] attract 30.0 million US dollars through international financial
organisations over the next three years” “(without a state guarantee)”). The Resolution, therefore,
does not establish direct state funding of Tajik Air’s operations.
The record reveals that Tajikistan has provided indirect financial assistance to Tajik Air.
In June 2020, the government passed a resolution reducing Tajik Air’s outstanding debt via tax
offsets for the company’s third-party creditors. See Pl.’s Notice of Suppl. Auth., ECF No. 15,
Suppl. Auth., ECF No. 15-1 [hereinafter ASIA-Plus Article], at 1 (announcing government
resolution that would offset nearly $2 million in Tajik Air’s debt). Such government action to
prop up a wholly owned instrumentality’s financial position is not at all unusual, however, and
does not constitute excessive control by the state. On this point, Transamerica Leasing is again
instructive. There, the Venezuelan government had decided to inject funds into its wholly owned
enterprise, CAVN, as part of a restructuring plan, and another government entity had entered into
a trust agreement with CAVN to help CAVN “satisfy its debts and attain liquidity.” Transamerica
Leasing, 200 F.3d at 852. The court found that “the infusion of state capital to cover CAVN’s
losses was a normal aspect of the relation between a government and a government-owned
corporation, not an instance of ‘day-to-day’ involvement in the affairs of the corporation.” Id. So,
too, here. Tajik Air reportedly “has been on the brink of bankruptcy for many years.” Pet’r’s
15
Opp’n, Ex. I, ECF No. 13-10 [hereinafter Fergana Article], at 1; see also ASIA-Plus Article
(describing the company’s financial position as “complicated,” causing it to suspend all flights at
the start of 2019). After it was restructured as a joint stock company in 2009, the company started
incurring substantial debt to third-parties, including airports, fueling companies, and on-board
catering vendors. See Fergana Article at 2; ASIA-Plus Article at 1. “Far from demonstrating . . .
control” sufficient to satisfy “the principal and agent exception announced in Bancec,” Tajikistan’s
efforts to “bail [Tajik Air] out of debt” are a “normal aspect of the relation between a government
and a government owned-corporation.” Transamerica Leasing, 200 F.3d at 852; see also Bancec,
462 U.S. at 624
(recognizing that government “appropriations to provide capital or to cover losses”
do not prevent a typical government instrumentality from being considered a separate juridical
entity).
What makes this a somewhat closer case than Transamerica Leasing is the fourth fact cited
by Skyroad: that the company’s Supervisory Board consists of high-ranking government officials.
According to a translated article appended to Skyroad’s opposition brief, in July 2018, in response
to the company’s financial distress, the government of Tajikistan established a “Supervisory
Board” comprising thirteen government officials, whose function, as described by the article, was
to “be responsible for the effective operations of the Company.” Pet’r’s Opp’n at 25;
id.,
Ex. H,
ECF No. 13-9 [hereinafter Board Article]. Government officials that sit on the Supervisory Board
include, among others, the country’s Prime Minister, who heads the Board; the First Deputy Prime
Minister; Deputy Prime Minister; and the Ministers of Finance, Transport, and Justice. See Board
Article. Thus, the officials who run the Tajik government run the Supervisory Board. Skyroad
asserts that the fact of interlocking high-ranking government and corporate officials establishes
Tajikistan’s complete domination of Tajik Air.
16
The court agrees that the presence of high-ranking government officials on Tajik Air’s
Supervisory Board provides some evidence of the state’s control over Tajik Air, but it is not
enough on this record to overcome Bancec’s presumption of separateness. The court so concludes
for three reasons.
First, the D.C. Circuit has long held that the presence of high-ranking government officials
on the managing board of a wholly owned state enterprise is not by itself enough to establish the
requisite degree of control. In Foremost-McKesson, the court wrote:
Nor can it be assumed that an official from a state entity who serves
on the board of directors of another such entity will act to serve or
promote the interests of the sovereign. Thus, the question
concerning an alleged agent/principal relationship between the
foreign state and an agency or instrumentality thereof does not
involve a meaningless inquiry.
905 F.2d at 448
. Bancec illustrates the need for such inquiry. There, the Governing Board of the
Cuban state-owned company “consist[ed] of delegates from Cuban governmental ministries,” and
the president of the Board (and of the Company) was none other than Ernesto Che Guevara, the
Minister of State. See Bancec,
462 U.S. at 615
. Still, the Court found that the entity was presumed
to be separate from the sovereign. See
id. at 628
. 3 Accordingly, in this case, the presumption
cannot be overcome simply because high-ranking government officials of Tajikistan sit on Tajik
Air’s Supervisory Board.
Second, the Supervisory Board appears not to be responsible for Skyroad’s day-to-day
operations. Cf. Transamerica Leasing, 200 F.3d at 851 (finding the government’s appointment of
an interim official to run a division of CAVN not sufficient to overcome the presumption of
3
The Court ultimately did not decide whether the presumption was overcome on the basis of a principal-agent
relationship, but did find the presumption surmounted because recognizing separateness would have worked an
injustice. See
462 U.S. at
630–32.
17
separateness, where the interim official was left “the task of running ‘day-to-day’ operations”).
According to Tajik Air’s counsel, the Supervisory Board referenced in the news article announcing
the Board, see Board Article, is the same body as the Supervisory Board described in the
company’s Articles of Association. See Hr’g Tr. at 32–34. Skyroad offers no evidence to the
contrary. The Articles describe the Supervisory Board’s role in largely policy-making terms.
Among its functions are defining “the selective engagement policy of the Company,” approving
the “financial plan of the Company,” defining the wages and incentives of executives, distributing
and purchasing the Company’s securities, setting credit policy, signing off on annual and financial
reports, adopting resolutions “on approval of transactions in execution of which there is an interest
of the Company,” and approving “major transactions, including transactions related to the
purchase, leasing any type of aircraft, as well as to the Bank loans.” Articles of Ass’n at 8–10.
These are corporate governance functions ordinarily associated with a board of directors of a
private enterprise.
By contrast, Tajik Air’s day-to-day operations are performed by its Director General, who
is “not an employee or official of the Government of the Republic of Tajikistan.” Ismatullozoda
Decl. ¶ 1; Articles of Ass’n at 11. His “[c]ompetence” extends to “all issues of management of
the current activity of the Company.” Articles of Ass’n ¶ 48. Such tasks include implementing
“the company’s business plans,” maintaining the accounting records and financial statements,
managing the company’s property, entering into contracts on behalf of the company, and
exercising “the rights and obligations of the employer in relation to the company’s employees.”
Id. ¶ 49. This division of authority set forth in the Articles of Association—corporate governance
performed by the Supervisory Board and day-to-day management by the Director General—is
consistent with the presumption of separateness.
18
It also would appear that this is how the company actually functions in practice. Tajik Air
has offered two sworn declarations of its General Director, Dilshod Ismatullozoda.
See Ismatullozoda Decl.; 2d Ismatullozoda Decl. He states that, as the General Director, he is
“responsible for the overall operation of Tajik Air and all matters in which Tajik Air is involved,”
Ismatullozoda Decl. ¶ 1, and the “Supervisory Board does not manage Tajik Air’s operations,”
2d Ismatullozoda Decl. ¶ 13; see also Ismatullozoda Decl. ¶ 12 (stating that the Director General
“has full operating control of Tajik Air’s day-to-day activities and is competent to address all
operating and management issues”). He adds that the Supervisory Board has met only twice in
the last two years—and only once since he began his position January 2019—and has not “issued
any decisions, resolutions, or directives regarding the operations or management of Tajik Air.” 2d
Ismatullozoda Decl. ¶¶ 13–14. Skyroad offers no evidence to contradict Ismatullozoda’s sworn
statements. It does suggest, however, that the court should not credit them because
Mr. Ismatullozoda did not join the organization until after the events at issue took place and thus
does not speak from personal knowledge. See Hr’g Tr. at 44. The court is unpersuaded.
Mr. Ismatullozoda’s statements are offered to describe the governance structure, management, and
operations of Skyroad, of which he has firsthand knowledge, not historic facts about the arbitration
or the conflict over the aircraft leases. The court therefore credits Mr. Ismatullozoda’s sworn
declarations, which support the separateness of Tajikistan and Tajik Air.
Third, Tajikistan’s appointment of high-government officials to the Supervisory Board was
precipitated by the company’s financial distress, and courts have been reticent to find the
presumption of separateness overcome in such circumstances. That was the case in Transamerica
Leasing, where the D.C. Circuit held that Venezuela’s appointment of an executive to carry out
CAVN’s restructuring was not evidence of excessive control. See 200 F.3d at 851. If such action
19
were enough to overcome the presumption of separateness, the court observed, “the holding of
Foremost-McKesson that majority stock ownership and control over the Board of Directors are
insufficient to transform parent to principal and instrumentality to agent would be limited to cases
in which the shareholder is utterly quiescent,” which “is not the law.” Id.; see also BCI Aircraft
Leasing, Inc. v. Republic of Ghana, No. 06-cv-0130,
2006 WL 2989291
, at *8–9 (N.D. Ill. Oct. 13,
2006) (finding fact that “[t]he Republic of Ghana removed the airline’s Board of Directors and
management ‘in one fell swoop’ and appointed [a] Government Task Force, a government agency,
to serve as both board and management” to assist a “troubled subsidiary” was insufficient to
establish a principal-agent relationship). Here, consistent with its status as sole shareholder,
Tajikistan did not remain “utterly quiescent” in the face of Tajik Air’s financial distress; it
appointed high-government officials to oversee the company’s financial recovery. Tajik Air did
not lose its separate identity by the sovereign’s actions.
Skyroad argues that this case is comparable to Shoham v. Islamic Republic of Iran, where
another court in this District found the Iranian state-owned Bank Saderat was an agent of the state
because it was “‘funded, regulated by, and primarily owned by Iran.’” Pet’r’s Opp’n at 26 (quoting
No. 12-cv-508,
2017 WL 2399454
, at *15 (D.D.C. June 1, 2017)). But that case, and those it relied
on, are distinguishable from this one. Whereas Tajik Air was privatized in 2009, “Bank Saderat
was nationalized by the Iranian government in 1979 and ha[d] operated as a state-run bank since.”
Shoham,
2017 WL 2399454
, at *15. Moreover, beyond being funded and regulated by the state,
the court in Shoham found Bank Saderat was “used by the Iranian government to further state
policies of supporting and funding terrorist organizations around the world.”
Id.
Accordingly, the
court concluded that Iran “exercise[d] sufficient control over” the bank to make it “an agent of the
state, barely distinguishable from an executive department of the government of Iran.” Id.;
20
see also TMR Energy,
411 F.3d at 302
(finding same where the State Property Fund of Ukraine
was used to “implement[] national policies” (internal quotation marks omitted)); McKesson Corp.
v. Islamic Republic of Iran,
52 F.3d 346
, 352 (D.C. Cir. 1995) (finding company was agent of Iran
where the company carried out an anti-American government policy that was not commercial in
nature but instead designed to injure American shareholders). Here, in contrast, there is absolutely
no evidence that the state uses Tajik Air, a commercial airline, to implement state policies. As the
D.C. Circuit suggested in McKesson, when “a government corporation is simply carrying out a
state commercial policy as a normal part of the corporation’s mission, without any state
involvement, the state should be insulated from the corporation’s actions.”
52 F.3d at 352
. So it
is here.
2. Actions in Underlying Arbitration
Skyroad next argues that Tajik Air’s actions in the underlying arbitration are evidence that
it is an agent of Tajikistan. See Pet’r’s Opp’n at 4, 26–28; Hr’g Tr. at 42–44. Recall that Tajik
Air challenged the jurisdiction of the arbitral tribunal on the basis of a Lithuanian law that prohibits
a state enterprise from entering an arbitration agreement without prior consent of the state.
See Pet’r’s Opp’n at 27 (citing Award ¶ 65; Stmt. of Appeal ¶ 11). That argument, made by a
government attorney on Tajik Air’s behalf, Skyroad contends, is evidence that Tajikistan so
extensively controls Tajik Air that it is not permitted to enter into an arbitration agreement absent
government consent. See Hr’g Tr. at 41, 43. But these facts lack the force and effect Skyroad
would like them to have.
For starters, that Skyroad asserted a jurisdictional defense based on its status as a wholly
owned state enterprise is not indicative of excessive control. Such a defense is a litigation position,
and, in terms of control, it is difficult to read anything more into it. Nor is the fact that Tajik Air
21
was represented by Mr. Khafizov in the arbitration proceeding indicative of a principal-agent
relationship. Tajik Air’s Director General asserts that Mr. Khafizov was hired in his personal
capacity and paid by Tajik Air, not the government of Tajikistan. See 2d Ismatullozoda Decl. ¶ 9.
Maybe so. But even if Mr. Khafizov was acting on behalf of Tajik Air in his capacity as a
government lawyer, such a modest mixing of government and corporate resources cannot bear the
burden of overcoming the presumption of separateness afforded Tajik Air under Bancec.
Skyroad also points to a filing Tajik Air made in the Lithuanian Court of Appeal for an
extension of time to comply with an order to pay Skyroad’s litigation costs as evidence that Tajik
Air is an agent of the state. See Hr’g Tr. at 42–43. Although the translation to English is far from
clear, Tajik Air explains in the Lithuanian-court filing that it is a “state-owned entity of the
Republic of Tajikistan, which determines both the complexity and length of the decision-adoption
process.” Pet’r’s Opp’n, Ex. G, ECF No. 13-8, at 4. As a result, it states, “a longer period [is]
required for the payment to reach the payee.”
Id.
Skyroad argues that this language signifies
government control over a “day-to-day operational decision[]” as simple as a “filing fee.” Hr’g
Tr. at 42. The court disagrees. The court does not read the request for more time made in the
Lithuanian Court of Appeal to say, as Skyroad suggests, that the state must approve even modest-
sized payments made by Tajik Air. Rather, the motion is better read to simply say that, because
Tajik Air is a wholly owned state enterprise, litigation decisions require a more complicated and
time-consuming set of consultations than in the case of a purely private company. Thus, the
extension request supplies little evidence of an unusual level of state control.
* * *
Accordingly, the court holds that the facts offered by Skyroad to show Tajikistan’s control
over Tajik Air, when viewed as a whole, are insufficient to satisfy the principal-agent exception to
22
Bancec’s presumption of separateness. This conclusion is reinforced by those cases in which the
Circuit has found the presumption to have been overcome. See e.g., TMR Energy,
411 F.3d at 302
;
McKesson Corp.,
52 F.3d at
351–52. In McKesson, for example, the court considered whether
Iran wielded sufficient control over a dairy (“Pak Dairy”) for it to be considered an agent of the
state.
52 F.3d at 351
. McKesson, an American corporation, “held 31 percent of the equity interest
in Pak Dairy,” and brought suit against Iran after its interest in the dairy was divested.
Id.
at 347–
48. Iranian “government entities held 52 percent of Pak Dairy’s stock and controlled six of the
seven seats on its board of directors.”
Id. at 351
. The court observed that “Iran’s alleged control
over [the] Dairy was exercised through entities on [the] Dairy’s Board, which were in turn
controlled by Iran.”
Id.
In finding that a principal-agent relationship existed between Iran and Pak
Dairy, the court observed that “Pak Dairy’s board and its government shareholders forced the dairy
to disregard its commercial mission and its duties to McKesson as a shareholder.”
Id.
“Iran’s
interest became the decisive factor in Pak Dairy’s actions with regard to McKesson. Routine
business decisions, such as declaring and paying dividends to shareholders and honoring the
dairy’s contractual commitments, were dictated by Iran . . . .”
Id.
at 351–52. With regard to the
act at issue, Pak Dairy’s denial of dividends to McKesson, the court found “Iran’s role was direct
and manifest.”
Id. at 352
. No such “direct and manifest” control by Tajikistan is evident in this
case.
A similar degree of state control was present in TMR Energy. There, the facts showed that
“the State of Ukraine had plenary control over the [State Property Fund of Ukraine (SPF)].”
411 F.3d at 301
. The SPF, by its founding resolution, was deemed to be “a body of the State which
implements national policies in the area of privatization” and “shall be subordinated and
accountable to the Supreme Rada,” the Ukrainian Parliament.
Id. at 326
(internal quotation marks
23
omitted). Also, critically, “the SPF’s expenses [were] paid from the budget of the State of
Ukraine.”
Id.
These “structural features,”
id.,
present in TMR Energy are entirely absent here.
To be sure, the court does not read McKesson or TMR Energy to establish a factual floor
for overcoming Bancec’s presumption of separateness. Nevertheless, the factual circumstances in
those cases stand in sharp contrast to those presented here. It is fair to say that a spectrum of post-
Bancec cases has emerged in this Circuit, and this case bears a far greater resemblance to
Transamerica Leasing than to McKesson or TMR Energy.
B. Equity
Next, Skyroad contends that treating Tajik Air as separate from the state would “work fraud
or injustice.” Bancec,
462 U.S. at 629
(internal quotation marks omitted). Here again, Skyroad
relies on Tajik Air’s actions in the underlying arbitration, arguing that Tajik Air has since changed
its position vis-à-vis its relationship to the state and therefore equity dictates the court treat Tajik
Air and Tajikistan as one and the same. See Pet’r’s Opp’n at 26–28. The court is unpersuaded.
The “work fraud or injustice” exception originated in Bancec. That case involved a Cuban
state-owned bank, Bancec, that brought suit against Citibank in U.S. District Court to collect on a
letter of credit.
462 U.S. at 613
. When Cuba nationalized Citibank property after it had extended
the letter of credit, Citibank sought to set off its debt against the value of its Cuban branches that
had been nationalized.
Id.
at 614–16. Bancec argued that it should be able to collect on the letter
of credit as a separate juridical entity but that it should not be subject to a set off because the FSIA
immunizes an instrumentality of a foreign government from suit on a counterclaim based on
actions taken by that government.
Id.
at 619–20. The court rejected Bancec’s argument,
characterizing it as “a foreign government” (Cuba) “invoking [U.S.] law” on the one hand, “but
resisting a claim against it which fairly would curtail its recovery.”
Id. at 632
(internal quotation
24
marks omitted). “[Bancec] wants [U.S.] law, like any other litigant,” the court observed, “but it
wants [U.S.] law free from the claims of justice”
Id.
(quoting Nat’l City Bank of N.Y. v. Republic
of China,
348 U.S. 356
, 361–62 (1955)). That is not what Tajik Air is attempting to do here. It
“is not attempting to use the federal courts as a sword while invoking the Constitution as a shield.”
Empresa Cubana Exportadora de Alimentos y Productos Varios v. U.S. Dep’t of Treasury,
606 F. Supp. 2d 59
, 77 (D.D.C. 2009). Instead, it is Skyroad that has haled Tajik Air into federal court
in the United States, and Tajik Air is simply arguing that it does not belong here.
Skyroad’s reliance on Corporacion Mexicana De Mantenimiento Integral, S. De R.L. De
C.V. v. Pemex-Exploracion Y Produccion (COMMISA),
832 F.3d 92
(2d Cir. 2016), is equally
unpersuasive. That case involved an arbitration award stemming from a contract between Pemex-
Exploración Y Producción (“PEP”), a Mexican state-owned enterprise, and Corporación Mexicana
De Mantenimiento Integral, S. De R.L. De C.V. (“COMMISA”), a subsidiary of a U.S. company,
for the construction of oil platforms in the Gulf of Mexico. See
id. at 97
. When the relationship
between the parties soured, PEP rescinded the contract, and COMMISA ultimately prevailed in
arbitration. See
id.
at 98–99. After judgment confirming the award was entered in the Southern
District of New York, the Eleventh Collegiate Court in Mexico set aside the award after finding
that PEP, “as an entity deemed part of the Mexican government, could not be forced to arbitrate.”
Id. at 97
. On appeal to the Second Circuit, PEP argued that the judgment confirming the award
should be set aside for, among other reasons, lack of personal jurisdiction.
Id. at 100
. Specifically,
PEP argued that it lacked minimum contacts with the United States and that the lower court had
erred in finding it was not entitled to due process protections as a foreign state-owned
instrumentality. See Br. for Resp’t-Appellant at 24, COMMISA, No. 10-4656 (2d Cir. Jan. 28,
2014),
2014 WL 487235
, at *24 [hereinafter Appellant’s Br.]. Later in the very same brief,
25
however, PEP argued that nullification of the arbitral award by the Mexican court should be
respected because “‘the view that public entities can abrogate contracts for reasons unavailable to
private parties is hardly alien to American law. For example, the U.S. Government can block
breach-of-contract suits against it by asserting that the litigation would reveal state secrets.’”
COMMISA, 832 F.3d at 104 (quoting Appellant’s Br. at 53). In other words, PEP equated itself
with a sovereign government. The court rejected PEP’s claim to due process rights, explaining
“PEP’s assertion (in arguing the merits) that it is integral to the Mexican government binds it for
all portions of this appeal, including personal jurisdiction.” Id. Here, at no point has Tajik Air
represented to this court that it is functionally equivalent to the Republic of Tajikistan yet
contradictorily asserted that it is entitled to due process protection.
Nor is it clear that Tajik Air made any representation of identity with the state in the
underlying arbitration or before the Lithuanian Court of Appeal, as Skyroad contends. In both
proceedings, Tajik Air asserted that the arbitral tribunal lacked jurisdiction to hear the dispute
because, under the commercial arbitration law of Lithuania, where the arbitration took place, a
state-owned entity like Tajik Air lacks the legal capacity to arbitrate without consent from the
state, and Tajikistan never granted such consent with respect to the Skyroad aircraft leases. See
Award ¶¶ 64–65; Stmt. of Appeal at ¶¶ 7–27. Nothing about that jurisdictional argument is
inconsistent with the position Tajik Air now takes. In theory, Tajik Air could have been required
under Lithuanian law to obtain the consent of its sovereign owner before having the capacity to
arbitrate, yet still remained a legally separate enterprise. Tajik Air never asserted in the underlying
proceedings that there was no separation between it and the state. Accordingly, Skyroad has failed
to show that “recognition of [Tajik Air] as an entity apart from the state ‘would work fraud or
injustice.’” Transamerica Leasing, 200 F.3d at 848 (quoting Bancec,
462 U.S. at 629
).
26
* * *
Having failed to provide facts sufficient to satisfy either exception to Bancec’s presumption
of separateness, the court must consider Tajik Air as a “person” for Fifth Amendment due process
purposes. GSS Grp.,
680 F.3d at
816–17. Because Skyroad makes no averment that Tajik Air has
any contacts with the United States, the court concludes that it lacks personal jurisdiction over
Tajik Air.
V. CONCLUSION
For the foregoing reasons, Respondent’s Motion to Dismiss, ECF No. 12, is hereby
granted. A separate final Order accompanies this Memorandum Opinion.
Dated: January 26, 2021 Amit P. Mehta
United States District Court Judge
27 |
4,654,754 | 2021-01-26 21:01:56.528149+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020cv0787-25-0 | Corrected
In the United States Court of Federal Claims
No. 20-787C
(Filed: January 25, 2021)
(NOT TO BE PUBLISHED)
)
JACOB QUEERN, on behalf of )
JEQ & Co. LLC )
)
Plaintiff, )
)
v. )
)
THE UNITED STATES, )
)
Defendant. )
)
OPINION AND ORDER
SOLOMSON, Judge.
On June 26, 2020, Jacob Queern filed a bid protest complaint on behalf of JEQ &
Co. LLC (“JEQ”), a corporation, against Defendant, the United States, in this Court. See
ECF No. 1 at 1. The complaint appears to protest certain actions of the Defense
Logistics Agency in connection with several government procurements. Id. at 2.
Although Mr. Queern may have intended to file suit on his own behalf as well, Mr.
Queern identified the plaintiff in this case as “a small business,” ECF No. 1-1, thus
indicating that JEQ is the true plaintiff in this proceeding – a conclusion with which this
Court agreed. Mr. Queern is not an attorney and thus cannot represent JEQ.
Pursuant to Rule 83.1(a)(3) of the Court of Federal Claims (“RCFC”), a
corporation may only appear before the Court through counsel. This rule is mandatory
and cannot be waived “even for cases of severe financial hardship.” Balbach v. United
States,
119 Fed. Cl. 681
, 683 (2015). Accordingly, “[w]here a corporate-plaintiff fails to
obtain counsel, the ordinary remedy is to dismiss its complaint for lack of prosecution.”
Alli v. United States,
93 Fed. Cl. 172
, 177 (2010).
Because JEQ is the apparent real party in interest to this bid protest and
Mr. Queern is not a licensed attorney, this Court issued an order, on June 30, 2020,
directing JEQ “to obtain counsel within thirty (30) calendar days of this order or to
show cause why the case should not be dismissed for failure to prosecute.” ECF No. 7
at 1 (emphasis in original). On August 25, 2020, after JEQ had still not obtained counsel,
the Court issued an order, requesting Mr. Queern’s consent on behalf of JEQ for the
Court to refer this case to the Court of Federal Claims Bar Association Pro
Bono/Attorney Referral Pilot Program (the “Pro Bono Program”) for the potential
representation of JEQ by counsel. ECF No. 10 at 3; see also ECF No. 12 (granting Mr.
Queern additional time to file notice of consent).
On September 18, 2020, Mr. Queern filed a notice with the Court, indicating his
consent for the referral of this case to the Pro Bono Program, see ECF No. 13 at 1, and,
subsequently, on September 22, 2020, the Court issued an order, directing the Clerk of
the Court to refer this case to the Pro Bono Program. ECF No. 14 at 2. The Court
further stayed this case for sixty days pending the identification of potential counsel.
Id.
On October 22, 2020, Joseph B. Fellows notified the Court, via motion, that he
had been retained as counsel by JEQ. ECF No. 15; see ECF No. 16. On December 21,
2020, however, Mr. Fellows moved to withdraw as counsel for JEQ noting that “[t]here
has been a complete breakdown in communication between [himself] and [JEQ].” ECF
No. 21 at 1. The next day, on December 22, 2020, the Court granted Mr. Fellows’ motion
to withdraw from this matter and stayed the case, again, for thirty days pending JEQ’s
identification of counsel. ECF No. 22 at 2. The Court made clear, however, that it “will
dismiss this case for lack of prosecution if an attorney authorized to practice before this
Court has not entered an appearance on behalf of JEQ by that time” and “[n]o further
extensions of time will be granted absent extraordinary grounds for such a request.”
Id.
(emphasis added).
JEQ still has not obtained counsel. Indeed, in response to the Court’s latest
order, Mr. Queern, on January 21, 2021, sought to file with the Court hundreds of pages,
which included various purported motions and accompanying exhibits not in
compliance with this Court’s rules. “While dismissal of a claim is a harsh action, . . . . it
is justified when a party fails to pursue litigation diligently and disregards the
courts rules . . . .” Whiting v. United States,
99 Fed. Cl. 13
, 17 (2011). Moreover, pursuant
to RCFC 41(b), “[i]f the plaintiff fails to prosecute or to comply with these rules or a
court order, the court may move to dismiss on its own motion.”
In light of JEQ’s failure to prosecute this case in compliance with this Court’s
rules, JEQ’s failure to obtain counsel with more than a reasonable period of time (as this
Court has stayed the case three times), and, finally, non-compliance with this Court’s
December 22, 2020 order, the Court rejects Mr. Queern’s January 21, 2021 filing and
DISMISSES JEQ’s complaint without prejudice to refile if and when JEQ obtains
-2-
counsel that is a member of the bar of this Court. The Clerk is directed to enter
JUDGMENT for the government accordingly. The Clerk is further directed not to
accept any further filings in this matter or otherwise on behalf of JEQ unless made by an
attorney who is a member of the bar of this Court.
IT IS SO ORDERED.
s/ Matthew H. Solomson
Matthew H. Solomson
Judge
-3- |
4,654,755 | 2021-01-26 21:01:57.465155+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018cv1804-67-0 | In the United States Court of Federal Claims
No. 18-1804C
Filed: January 25, 2021
NOT FOR PUBLICATION
LINDA CRAWLEY, LIP CHEN, MARTA
ELIZABETH LOPEZ, EVELYN
SHERMAN, HEATHER GUTENSOHN,
MELANIE CHRISTIAN, JOSEPH
HICKS, JENNY B. REDMOND, and
SAJITHA NATHAN, on behalf of
themselves and all others similarly
situated,
Plaintiffs,
v.
UNITED STATES,
Defendant.
Ira M. Lechner, Washington, D.C., for the plaintiffs.
Joseph A. Pixley, Commercial Litigation Branch, Civil Division, U.S. Department of Justice,
Washington, D.C., Kendall Rocio, U.S. Department of Veterans Affairs, of counsel, for the
defendant.
MEMORANDUM OPINION AND ORDER
HERTLING, Judge
The plaintiffs seek to recover back pay and interest for night-premium pay allegedly not
paid by the United States, acting through the Department of Veterans Affairs (“VA”). The
named plaintiffs are registered nurses (“RNs”) from the VA Medical Center in Richmond,
Virginia, and hybrid health-care workers from the VA Medical Center in Hines, Illinois.1 They
seek to represent other VA employees similarly situated.
“Hybrid” refers to VA employees from various allied health professions. Curry v. United
1
States,
66 Fed. Cl. 593
, 595 (2005). These employees are called “hybrid” because they are
governed in some respects by provisions of Title 38 of the U.S. Code and in other respects by
provisions of Title 5.
Id.
at 595 n.4.
The plaintiffs have moved for class certification under Rule 23 of the Rules of the Court
of Federal Claims (“RCFC”), approval of a postcard providing notice to putative class members,
approval of the official class notice, appointment of Ira M. Lechner as class counsel, and
appointment of Epiq Class Actions & Claims Solutions, Inc. as class-action administrator. They
have also moved for an order compelling the defendant to produce under seal identifying
information of potential putative class members in various categories.
Because the plaintiffs have failed to meet their burden under RCFC 23, the Court denies
the plaintiffs’ motion for class certification. The motion is denied with prejudice with respect to
(1) the proposed class based on the Hines plaintiffs’ claim, (2) the proposed national class based
on either the Hines or Richmond plaintiffs’ claims, and (3) the proposed class based on general
schedule VA employees. The motion is denied without prejudice regarding the proposed class
based on the Richmond plaintiffs’ claim, limited to potential plaintiffs at the Richmond facility.
I. BACKGROUND
The plaintiffs allege that the VA did not pay them the differential night-premium pay to
which they were entitled. They seek back pay and interest pursuant to
5 U.S.C. § 5596
(the Back
Pay Act);
5 U.S.C. § 6303
, et seq. (the leave-with-pay statutes); and
38 U.S.C. §§ 7453
(b),
7454(b)(1). The Richmond plaintiffs—Heather Gutensohn, Melanie Christian, Joseph Hicks,
Jenny B. Redmond, and Sajitha Nathan—are employed as RNs at the VA Medical Center in
Richmond, Virginia. (ECF 1, ¶ 8.) The Hines plaintiffs—Linda Crawley, Lip Chen, Marta
Elizabeth Lopez, and Evelyn Sherman—are employed as hybrid employees at the VA Medical
Center in Hines, Illinois. (Id. ¶ 7.) The plaintiffs from both the Richmond and Hines facilities
seek to represent putative classes of similarly situated VA employees at both their own facilities
and other VA medical facilities.
A. Legal Background
Title 5 and Title 38 of the U.S. Code provide two forms of night-premium pay for certain
federal employees. Title 5 entitles a federal employee who is regularly scheduled to work
between the hours of 6:00 p.m. and 6:00 a.m. to receive differential night-premium pay while on
paid leave when the total amount of paid leave is less than eight hours.
5 U.S.C. § 5545
(a). Title
38 entitles a nurse performing a service, any part of which is within the period between 6:00 p.m.
and 6:00 a.m., to receive additional pay for each hour of such service at a rate equal to 10 percent
of the nurse’s hourly rate of basic pay if at least four hours of such service fall between 6:00 p.m.
and 6:00 a.m.
38 U.S.C. § 7453
(b).
Section 7453 also provides the Secretary of Veterans Affairs with the discretion to
increase the rates of night-differential pay.
Id.
§ 7453(j). Under another provision of Title 38,
the Secretary also may authorize, “on a nationwide, local, or other geographic basis,” additional
pay to non-nurse VA employees “on the same basis as provided for nurses in section 7453 . . . .”
Id. § 7454(b)(1).
2
B. Richmond Plaintiffs
In 2007, the Medical Center Director of the Richmond VA Medical Center approved a
request to pay Licensed Practical Nurses (“LPNs”) premium pay on the same basis as RNs and
approved an increase in the night-premium pay of RNs and LPNs from 10 percent to 14 percent.
(ECF 53, Ex. B.)
The Richmond plaintiffs allege that, since November 23, 2012, they have not received
payment of night-premium pay at the rate of 14 percent when they have been regularly scheduled
to work tours of duty between 6:00 p.m. and 6:00 a.m. (and contiguous hours), on overtime
during those hours, or on holidays.2 (ECF 1, ¶¶ 3, 8.)
The VA identified a total of 1,907 RNs and LPNs who were eligible for the approved 14
percent night-premium pay differential at the Richmond VA facility. (ECF 53, Ex. C at 4-5.) Of
those eligible, 795 RNs and LPNs were paid the 10 percent pay differential, instead of the 14
percent. (Id. at 5.) A VA management analyst found that the difference was “due to personnel
actions that changed employee records due to promotion, job change, and[/]or general
adjustments.” (Id.) In an interrogatory response, the defendant also identified 366 Richmond
RNs or LPNs who were not paid any differential night-premium pay for regularly scheduled
work at night.3 (ECF 62, Ex. 5 at 4.)
C. Hines Plaintiffs
The Hines plaintiffs allege that, since November 23, 2012, when they used authorized
and accrued leave during nighttime hours, their pay did not include an amount equal to the
additional pay they would have received while working scheduled tours of duty between 6:00
p.m. and 6:00 a.m. (and contiguous hours). (ECF 1, ¶ 7.)
In 2019, the defendant moved under RCFC 12(b)(1) and (b)(6) to dismiss the Hines
plaintiffs’ claims on two grounds: (1)
38 U.S.C. § 7454
(b)(1) is not money-mandating; and (2)
the plaintiffs failed to allege that the VA had approved them for premium pay on the same basis
as RNs under Title 38. (ECF 34.) At oral argument on the defendant’s motion, the plaintiffs
clarified that the Hines plaintiffs’ backpay claims for night-premium pay do not arise under Title
38 and are only for periods of authorized paid leave. (See ECF 41.) They allege entitlement to
this pay under Title 5’s leave-with-pay statutes, which, they argue, are money-mandating. The
2
There is no apparent significance to the date November 23, 2012. The plaintiffs filed their
complaint on November 26, 2018, so it appears that the date may be intended to keep the claims
within the six-year statute of limitations (though exceeding it by three days). (See ECF 62 at 7-
8.)
3
The defendant objected to the plaintiffs’ use of the phrase “regularly scheduled” because it
was neither “defined nor apparently relevant or proportional to the Title 38 claims at issue.”
(ECF 62, Ex. 5 at 4.)
3
defendant agreed that the relevant Title 5 provisions are money-mandating. Accordingly, the
Court denied the defendant’s motion to dismiss. (Id.)
In an interrogatory, the plaintiffs asked the defendant to identify the total number of
Hines, Illinois hybrid employees who were not paid 10 percent night-premium pay for accrued
and authorized paid leave at night, “including any contiguous hours if the majority of the
scheduled hours on the shift exceeded four (4) hours between 6 p.m. to 6 a.m.” (ECF 62, Ex. 5
at 3.) The defendant identified 237 individuals in response to that interrogatory. (Id.)
II. DISCUSSION
The plaintiffs have moved to certify subclasses based on two categories of affected
employees: (1) hybrid employees similarly situated to the Hines plaintiffs, and (2) RNs and
LPNs similarly situated to the Richmond plaintiffs. (ECF 50, amended by ECF 62.4) The
plaintiffs have also moved to certify another subclass consisting of general schedule employees
at the VA who were allegedly not paid the proper night-premium pay. (Id.) The defendant has
opposed the plaintiffs’ motion, arguing that: (1) the named Hines plaintiffs were in fact paid the
premium pay to which they were entitled under Title 5, so they cannot be representative of a
putative class; (2) class status is inappropriate and unnecessary for the Richmond plaintiffs
because the VA has identified all potential claimants at the Richmond facility; (3) the Richmond
plaintiffs failed to establish that they meet the requirements of RCFC 23; and (4) the Richmond
plaintiffs failed to show that the pay discrepancies they experienced are systemic to the entire
VA healthcare system. (ECF 53.)
The motion has been fully briefed, and the Court determines that oral argument would
not assist in the resolution of the motion.5
A. RCFC 23 - Class Action Certification
RCFC 23 establishes the requirements for this Court to certify an opt-in class. See RCFC
23(a)-(b). This court has summarized RCFC 23’s provisions as imposing five requirements:
(i) numerosity—a class so large that joinder is impracticable; (ii)
commonality—in terms of the presence of common questions of
law or fact, the predominance of those questions, and the treatment
received by the class members at the hands of the United States; (iii)
typicality—that the named parties’ claims are typic of the class; (iv)
4
The Court considers the plaintiffs’ amended motion (ECF 62) as the operative motion.
5
After briefing was complete, the plaintiffs requested the Court hold oral argument. (ECF
64.) If the underlying motion under RCFC 23 presented a close question, the Court would on its
own have scheduled oral argument, but the plaintiffs’ motion is so patently inadequate that oral
argument would simply waste the parties’ and the Court’s time. The motion for oral argument is
denied.
4
adequacy—relating to fair representation; and (v) superiority—
that a class action is the fairest and most efficient way to resolve a
given set of controversies.
Barnes v. United States,
68 Fed. Cl. 492
, 494 (2005) (bold in original).
Although there are differences between RCFC 23 and Rule 23 of the Federal Rules of
Civil Procedure (“FRCP”), this court may rely on decisions from both this court and other
federal courts, interpreting FRCP 23, to construe RCFC 23 because much of the language is
identical. See Horvath v. United States,
149 Fed. Cl. 735
, 743 n.4 (2020); Barnes, 68 Fed. Cl. at
494 n.1. The plaintiffs bear the burden of establishing RCFC 23’s requirements, and they must
demonstrate that all five requirements are satisfied for the court to certify a class. Mercier v.
United States,
138 Fed. Cl. 265
, 270 (2018).
Despite having the burden of establishing all five of RCFC 23’s requirements, much of
the plaintiffs’ argument amounts to assertions that the requirements have been met.
The plaintiffs’ complaint alleges that class status is appropriate by asserting that the
requirements of RCFC 23 are satisfied without providing the necessary factual support and legal
analysis to enable the Court to determine that the requirements are indeed satisfied. (See ECF 1,
¶¶ 15-22.) The allegations in the complaint are not supported by facts derived from discovery or
another source and are not informed by and do not address the defendant’s response to the
plaintiffs’ interrogatories, the defendant’s argument in its opposition brief, or the defendant’s
exhibits submitted with its opposition brief.
Aside from a discussion of numerosity in their briefs and supporting declaration, the
entirety of the plaintiffs’ RCFC 23 analysis in their motion for class certification is the
following:
Plaintiffs respectfully submit, in accord RCFC 23(a) and (b), that
the potential class is so numerous that joinder of all members is
impracticable; that the class action is manageable; that the Plaintiffs’
claims are typical of the claims of the rest of the class; that
Defendant has admitted that it acted or refused to act on grounds
generally applicable to the class; that the questions of law or fact
common to the members of the class predominate over any question
affecting only individual members; that a class action is superior to
other available methods for the fair and efficient adjudication of the
controversy; that the Plaintiffs, and the attorney representing the
class, will fairly and adequately represent the interests of the class;
and that the prerequisites to the certification of a class action and the
maintainability of the class action have been satisfied pursuant to
RCFC 23(a) and (b).
(ECF 62 at 3.)
5
The plaintiffs make no effort to apply the facts derived through class discovery to the
legal standards for each prong of RCFC 23. The “submission” that the requirements of RCFC 23
are met does not satisfy the plaintiffs’ burden. The burden of establishing entitlement to a class
rests solely with the plaintiffs, and it is neither the defendant’s nor the Court’s role to parse,
analyze, or rebut generalized assertions in the context of addressing a motion under RCFC 23.
The easiest response would be simply to deny the motion without prejudice. The defendant’s
opposition, however, enables the Court to determine that portions of the plaintiffs’ motion must
be denied with prejudice.
B. Hines Plaintiffs
The named Hines plaintiffs are hybrid employees. They seek to represent other hybrid
employees who, when they used authorized and accrued leave during nighttime hours, were not
paid an amount equal to the additional pay they would have received while working scheduled
tours of duty between 6:00 p.m. and 6:00 a.m. (and contiguous hours).
The plaintiffs contend that the defendant admitted in response to an interrogatory that the
Hines plaintiffs were not paid the authorized night premium when they used authorized paid
leave in place of working scheduled night shifts. During class discovery, the plaintiffs asked the
defendant to identify the total number of Hines hybrid employees who were not paid 10 percent
night-premium pay for accrued and authorized paid leave at night, “including any contiguous
hours if the majority of the scheduled hours on the shift exceeded four (4) hours between 6 p.m.
to 6 a.m.” (ECF 62, Ex. 5 at 3.) In response to that interrogatory, the defendant identified 237
individuals. (Id.)
In its opposition to the plaintiffs’ motion, the defendant has clarified that it did not admit
that those 237 individuals were not paid properly. (ECF 53 at 9.) Instead, the plaintiffs’
interrogatories caused confusion because the interrogatories do not make a distinction between
the two types of premium pay under Titles 5 and 38. Title 5 applies to pay periods of “less than
8 hours,”
5 U.S.C. § 5545
(a)(2) (the so-called “8-hour rule”), and Title 38 applies to pay periods
of “at least four hours,”
38 U.S.C. § 7453
(b). The plaintiffs’ interrogatory—in specifying shifts
exceeding four hours—confuses Title 38 with Title 5. The defendant’s response, therefore,
includes periods exceeding eight hours, and such periods are beyond the scope of Title 5’s
authority. The number of employees fitting the plaintiffs’ interrogatory is thus not an account of
employees improperly paid under Title 5.
The plaintiffs argue that the 8-hour rule in
5 U.S.C. § 5545
(a)(2) does not apply to the
hybrid employees at the Hines VA facility, and that the Hines facility applied the limitation in
error. (ECF 59 at 17-27.) In Curry v. United States,
66 Fed. Cl. 593
, 602 (2005), Judge Wolski
held that the hybrid-employee plaintiffs in that case were not subject to the 8-hour rule because
the Title 5 provisions cannot supersede or override Title 38, whose pay provisions do not have
the 8-hour rule. See also
38 U.S.C. § 7425
(b) (providing that no provision of Title 5 shall
supersede, override, or otherwise modify Title 38). On the authority of Curry, the plaintiffs
argue that the hybrid employees in this case are not limited by the 8-hour rule. (ECF 59 at 19-
20.)
6
The plaintiffs miss the key distinction between their claims here and those raised in
Curry. Under Title 38, the VA Secretary may authorize, “on a nationwide, local, or other
geographic basis,” additional pay to non-nurse VA employees “on the same basis as provided for
nurses in section 7453 . . . .”
38 U.S.C. § 7454
(b)(1). In Curry, the Secretary had exercised that
authority and designated the hybrid-employee plaintiffs as employees entitled to receive night-
premium pay under
38 U.S.C. § 7454
(b)(1). Curry, 66 Fed. Cl. at 597. Both parties in Curry
stipulated that the hybrid-employee plaintiffs there were eligible for both night- and weekend-
premium pay on the same basis as RNs. Id. at 597 n.8.
The parties in this case have not entered in the record such a stipulation. In fact, the
defendant moved for partial dismissal on this very point, arguing that § 7454(b)(1) was not
money-mandating because the permissive language (“may”) did not mandate payment, at least
absent approval. (ECF 34.) The plaintiffs have not alleged that the director at the Hines facility
or any other authority approved the hybrid employees at the Hines facility for additional pay
under Title 38. The Court denied the defendant’s motion to dismiss because the plaintiffs
clarified at oral argument that the Hines plaintiffs’ backpay claims for night-premium pay do not
arise under Title 38 but only under Title 5. (ECF 41.) The plaintiffs have conceded that Title 38
does not apply to their claims. Accordingly, Curry is inapplicable, and Title 5’s 8-hour rule
applies.
The Court cannot know how many of the 237 individuals identified in the interrogatory
response were not paid properly under Title 5. Regardless of the precise number, however, the
Court determines that the plaintiffs have failed to demonstrate the requisite numerosity.
In addition to failing to show numerosity, the named Hines plaintiffs cannot meet RCFC
23’s commonality requirement. Commonality requires “questions of law or fact common to the
class.” RCFC 23(a)(2).
The VA confirmed that the named Hines plaintiffs were entitled to night-premium pay
under Title 5. (ECF 53, Ex. A at 1.) The VA reviewed its pay records for each named plaintiff:
Linda Crawley, Lip Chen, Marta Elizabeth Lopez, and Evelyn Sherman. (Id.) Each “received
night differential premium pay under Title 5 authority when paid leave was used between 6pm
and 6am and the total amount of leave in the pay period is less than eight (8) hours.” (Id.) The
plaintiffs have not contested the defendant’s evidence on this point. As a result, the named
plaintiffs have suffered no compensable injury.
In their amended motion for class certification, the plaintiffs claim, for the first time,
entitlement to unpaid Saturday premium pay. (ECF 62.) This allegation is not properly before
the Court. In their reply brief, the plaintiffs claim “entitlement to an additional premium of 25%
when they used ‘leave with pay’ instead of work on Saturdays.” (ECF 59 at 17 (emphasis
omitted).) The plaintiffs did not raise this claim in their complaint, which seeks only back pay
for night-premium pay, without any mention of Saturday pay. The Court will not consider a
newly asserted claim not presented in the complaint on a subsequent motion. See Michels v.
United States,
72 Fed. Cl. 426
, 431-32 (2006) (declining to consider claims presented in
plaintiff’s brief opposing a motion to dismiss where the new claims were not included in the
complaint). Accordingly, the plaintiffs’ claim for Saturday pay is not properly before the Court
7
and provides no basis on which the named Hines plaintiffs can support their motion for class
certification.
Because the named Hines plaintiffs properly received the night-premium pay to which
they were entitled under Title 5, they do not have a common question of law or fact with
potential plaintiffs who were improperly paid. The Court denies the plaintiffs’ motion for class
certification regarding the Hines plaintiffs’ claims.6
C. National Class
The plaintiffs propose to certify two subclasses, based separately on the Hines and
Richmond plaintiffs’ claims, covering all similarly situated VA employees nationally. (See ECF
1, ¶ 13.) The plaintiffs, however, have failed to establish RCFC 23’s commonality requirement
because they have not shown that “there are questions of law or fact common to the class” or that
“the United States acted or refused to act on grounds generally applicable to the class.” RCFC
23(a)(2), (b)(2).
In support of their motion for class certification, the plaintiffs submit the declaration of
Daniel Kowalski to support their assertion that the putative class extends throughout the VA’s in-
patient hospital system. (See ECF 62, Ex. 4.) Mr. Kowalski was employed by the VA from
1972 to 2006 in various human-resources positions. (Id. at 1.) To determine an opinion on
whether nonpayment of night-premium pay may be replicated at the other 150 VA medical
centers, he relied on the defendant’s answers to the plaintiffs’ interrogatories (combining Hines
and Richmond employee numbers). (Id. at 3-4.) Mr. Kowalski formulated a rate of improper
payment based on those answers and then applied that rate across the entire VA system,
concluding that “the total number of claimants in the other VA Medical Centers could be 9,888
. . . or greater.” (Id. at 4.)
Because the named Hines plaintiffs themselves were not improperly paid, as previously
discussed, they cannot represent a national putative class. Given the confusion caused by the
plaintiffs’ interrogatory, there is no indication that there are pay discrepancies at the Hines
facility, much less national or systemic discrepancies. Mr. Kowalski relied on the Hines
numbers in error.
The VA confirmed that 795 RNs and LPNs were not paid the approved 14 percent pay at
the Richmond facility. A current VA Management Analyst, Robert Jackson, explained that the
discrepancy at the Richmond facility was caused by “personnel actions that changed employee
records due to promotion, job change, and[/]or general adjustments.” (ECF 53, Ex. C at 5.)
When those changes were made, “the employee’s premium pay code that indicated to the system
that the Night Differential rate should be 14% fell off the employee record.” (Id.)
6
The Court anticipates that the defendant will move expeditiously for summary judgment on
the claims of the named Hines plaintiffs.
8
Despite indication of errors at the Richmond facility, it does not follow that the same
systemic error exists throughout the VA system. According to the defendant’s witness, Mr.
Jackson, the pay discrepancy found in Richmond is individualized to certain personnel actions.
(Id.) Even the plaintiffs’ expert, Mr. Kowalski, in a second declaration, admitted that
“[a]lthough the system is electronic and largely automated, the accuracy of pay is still dependent
on designated timekeepers, [human-resources] and Payroll employees properly entering required
‘codes.’” (ECF 59, Ex. 1 at 3.) Any attempt to assume that other VA facilities have a similar
rate of improper payment is speculation. The individualized pay discrepancies found among
Richmond employees cannot be extrapolated across the VA system as attempted by Mr.
Kowalski and the plaintiffs. It is possible that there are pay errors at other VA facilities, but the
Court needs more than speculation to conclude that there is a national problem. It is the
plaintiffs’ burden to meet, and they have failed to do so here.
The plaintiffs also have not identified any other VA facilities where an increase in night-
premium pay was approved, even though they noted that they have served the defendant with an
interrogatory seeking specific information as to pay practices at other VA facilities. (See ECF 59
at 9 n.2.) Mr. Kowalski concludes that he is “unable to estimate the precise number of
employees who were not properly paid a night differential of more than 10% since I have no
information on the number of employees who are authorized to receive a differential of more
than 10%.” (ECF 62, Ex. 4 at 5.)
Because the plaintiffs merely speculate about underpayment at other VA facilities
without identifying a systemic error or even identifying other VA facilities that have authorized
increased night-premium pay, the plaintiffs cannot show that there is a common question of law
or fact in a national class. On the same reasoning, they cannot show that the United States acted
or refused to act on grounds generally applicable to a national class. The plaintiffs, therefore,
cannot establish a national putative class based on the Richmond plaintiffs’ claims.
Because the plaintiffs have failed to establish RCFC 23’s commonality requirement for a
national class based on the Hines and Richmond plaintiffs’ claims, the Court denies the
plaintiffs’ motion for certification of a national putative class.
D. General Schedule Employees
The plaintiffs also seek to certify a subclass consisting of general schedule employees at
VA facilities. (ECF 62 at 2.) The plaintiffs refer to these employees as “GS-Title 5.” (Id.) The
VA allegedly “failed to pay night premium pay and/or Saturday premium pay when those
employees used authorized annual leave, sick leave, or military training leave, instead of
performing scheduled work during night and/or Saturday hours since November 23, 2012.” (Id.)
In their reply brief, the plaintiffs ask that class certification of this subclass be resolved when the
defendant replies to the plaintiffs’ outstanding interrogatory as to this subclass. (ECF 59 at 27.)
The plaintiffs’ complaint, however, sets out only two subclasses: one based on the claims
of the Hines plaintiffs for hybrid employees and the other based on the claims of the Richmond
plaintiffs for RNs and LPNs. (ECF 1, ¶ 13.) The Hines plaintiffs are employed as hybrid
9
employees, and the Richmond plaintiffs are employed as RNs. (Id. ¶¶ 7-8.) Further, as
previously noted, the complaint does not set out a claim for Saturday premium pay.
Not only is there no named plaintiff representation for general schedule employees, but
the plaintiffs may not, in a motion to certify a class, raise additional claims beyond those claims
raised in their complaint. See Michels, 72 Fed. Cl. at 431-32 (“The appropriate means of raising
this [newly asserted] claim would have been either to have included it in plaintiff’s complaint or
to have filed a motion to amend the complaint pursuant to RCFC 15.”).
To the extent that the “GS-Title 5” employees may be subject to the same Title 5
provisions as the Hines plaintiffs, the named Hines plaintiffs were not improperly paid and
cannot represent them. The Court, therefore, must deny the plaintiffs’ attempt to certify a
subclass of general schedule employees at VA facilities.
E. Richmond Plaintiffs
Finally, the Court considers class certification at the Richmond facility alone. The named
Richmond plaintiffs are RNs at the VA Medical Center in Richmond, Virginia. They seek to
represent other RNs and LPNs who were not paid the approved increase in the night-premium
pay from 10 percent to 14 percent at the Richmond VA Medical Center and other VA facilities
that have approved increased night-premium pay. The VA has identified 795 RNs and LPNs
who were not paid the increased pay at the Richmond facility.
1. Numerosity
Class certification requires that “the class is so numerous that joinder of all members is
impracticable.” RCFC 23(a)(1). To determine whether numerosity is satisfied, courts look at
several factors, “including the number of class members, the location of members of the
proposed class, the size of individual claims, and the nature of the action.” Haggart v. United
States,
89 Fed. Cl. 523
, 530 (2009). This court’s opt-in class approach “‘resembles permissive
joinder in that it requires affirmative action on the part of every potential plaintiff,’” but the class
action remains procedurally distinct from joinder. See
id.
(quoting Buchan v. United States,
27 Fed. Cl. 222
, 223 (1992)); RCFC 20 (providing for permissive joinder of parties); Common
Ground Healthcare Coop. v. United States,
137 Fed. Cl. 630
, 642 n.9 (2018) (“Procedurally,
RCFC 20 requires a motion to amend the complaint to join new plaintiffs . . . .”). Joinder need
not be impossible to certify a class; it need only be impracticable. Barnes, 68 Fed. Cl. at 495.
Joinder may be “‘considered more practicable when all members of the class are from the same
geographic area’” or “when class members are easily identifiable.” Jaynes v. United States,
69 Fed. Cl. 450
, 454 (2006) (quoting Andrews v. Bechtel Power Corp.,
780 F.2d 124
, 131-32 (1st
Cir. 1985), cert. denied,
476 U.S. 1172
(1986)).
The plaintiffs argue that “[e]ach subclass is so numerous that joinder of all members is
impracticable as the pool of potential members is in excess of 1,000 present and former
employees.” (ECF 1, ¶ 15; see also ECF 62 at 3.) The plaintiffs note that the defendant revised
its interrogatory response “by providing a new list of 1,884 names and addresses of present and
former employees at Hines, Illinois and Richmond, Virginia.” (ECF 62 at 6.) The plaintiffs
10
claim that these employees were not properly paid night-premium pay. (Id.) This number of
employees, the plaintiffs assert, “certainly satisfies the finding as to the numerosity of the
putative class.” (Id.)
The defendant argues that class certification of the potential Richmond facility plaintiffs
is not appropriate because the potential plaintiffs are readily identifiable and may bring
individual claims through joinder. (ECF 53 at 12.) The VA has identified 795 potential
claimants who were not paid the increased night-premium pay at the Richmond facility. The
defendant argues that 795 claimants are not so numerous as to make their joinder impracticable.
The defendant makes no mention of the 366 Richmond RNs or LPNs receiving no differential
night-premium pay that it identified in its interrogatory response. (See ECF 62, Ex. 5 at 4.)
The plaintiffs argue that joinder would be impracticable, which is all that is required to
establish numerosity under RCFC 23(a)(1). (ECF 59 at 12.) Although the plaintiffs’ analysis
considers a potential national class, the Court finds the numerosity requirement met even
considering the Richmond facility alone. The defendant has identified up to 1,161 (the sum of
795 and 366) Richmond RNs or LPNs improperly paid and potentially requiring notice of this
suit to consider joining. RCFC 23 provides a procedure for notifying potential plaintiffs in class
actions, but RCFC 20 offers no such procedure for permissive joinders. Compare RCFC 23 with
RCFC 20. Even though the potential plaintiffs have been identified, the Court finds that joinder
of up to 1,161 potential plaintiffs would be impracticable. See Haggart, 89 Fed. Cl. at 530-32
(finding the numerosity requirement met in a case involving roughly 750 identifiable landowners
in a defined geographic area).
2. Commonality
To determine whether commonality is satisfied, courts consider three questions: (1)
whether “there are questions of law or fact common to the class”; (2) whether those common
questions “predominate over any questions affecting only individual members”; and (3) whether
“the United States acted or refused to act on grounds generally applicable to the class.” Haggart,
89 Fed. Cl. at 532; RCFC 23(a)(2), (b)(2)-(3).
The plaintiffs argue that there are common questions of law and fact affecting the
members of each subclass. (ECF 1, ¶ 16; see also ECF 62 at 3.) The Richmond plaintiffs, the
plaintiffs contend, share the following common legal question:
whether the VA violated its authorizing Memoranda approving the
payment of “14% off-tour pay differential for evening and night for
RNs and LPNs from the current rate of 10% to 14% of base salary”
(or some percentage in excess of 10%) for service at night (and
contiguous hours) when members of the subclass of RNs and LPNs
employed at the VA Medical Center in Richmond, Virginia
performed service at night, but were paid 10% for such service since
November 23, 2012 . . . .
11
(ECF 1, ¶ 17; see also ECF 53, Ex. B (the VA’s authorizing Memorandum).) The plaintiff
alleges that the United States “has acted or refused to act since November 23, 2012 on grounds
generally applicable to each subclass by denying proper compensation to eligible opt-in members
of each subclass.” (ECF 1, ¶ 22.)
The defendant responds that “the ‘pay issue’ at the Richmond facility does not concern a
question of law, but solely involves ‘coding’ errors that resulted in the non-payment of the 14
percent premium pay to certain employees for certain pay periods.” (ECF 53 at 13.) The
defendant argues that the plaintiffs have not satisfied the predominance requirement because the
premium pay is coded manually by individual human operators. A VA Management Analyst has
explained how the pay discrepancies occurred at the Richmond facility: “Because the 14%
premium rate for LPN and RN is a deviation from the Agency standard of 10% night differential,
a manual entry by [human resources] and/or payroll is required, thereby creating the opportunity
for human error.” (ECF 63, Ex. D at 1-2.) Although these human errors may occur, the potential
pay issue, the defendant argues, “cannot be ‘resolved by generalized proof.’” (ECF 53 at 15
(quoting Jaynes, 69 Fed. Cl. at 457).) Instead, the defendant argues, the claims can only be
resolved on a case-by-case basis. (Id.)
The plaintiffs argue that the defendant’s “abstract notion of what is ‘a matter of law’” is
wrong: “Every ‘question of law’ in such class action cases involves whether the plaintiffs and the
potential members of the class qualify factually as well as legally for the remedy sought by the
class to repair the defendant’s alleged violations of law . . . .” (ECF 59 at 11.) The Court
understands this argument to mean that the common question of law is whether the plaintiffs
were eligible for and not paid increased pay mandated by the statute. The VA has identified
those individuals at the Richmond facility.
On the one hand, the plaintiffs have not adequately addressed the predominance
requirement. As noted in Barnes, although individual class members do not need to be
identically situated, “the Supreme Court has indicated that the predominance component is ‘far
more demanding’ [than the other commonality requirements] and is designed to determine
whether ‘proposed classes are sufficiently cohesive to warrant adjudication by representation.’”
Barnes, 68 Fed. Cl. at 496 (quoting Amchem Products, Inc. v. Windsor,
521 U.S. 591
, 623-24
(1997)). The plaintiffs argue that “Mr. Jackson already has clarified and resolved ‘by
generalized proof’ the actual, not potential, ‘pay issue.’” (ECF 59 at 14 (emphasis omitted).)
According to Mr. Jackson in his declaration, pay discrepancies were caused by personnel actions.
(ECF 53, Ex. C at 5.) The plaintiffs characterize the discrepancies as a “systemic failure” and
argue that liability can be easily calculated. (ECF 59 at 14, 16.) It is an open question, however,
whether resolution of the proposed class’s claims require generalized or individualized proof.
Are the pay errors systemic or personal to each identified employee? Does the common
question—of whether the plaintiffs were improperly paid—predominate any potential
differences in personnel actions causing error? The plaintiffs must provide more analysis to
meet their burden of showing commonality.
On the other hand, the defendant’s argument on the commonality issue is not sufficiently
persuasive to enable the Court to reject with finality the plaintiffs’ motion. The plaintiffs have
alleged enough factors to support class status, if they can meet their burden. The defendant’s
12
argument that each putative Richmond class member who did not receive night-premium pay
was subjected to an individualized error is insufficient. Certain issues may demand too
individualized a determination to support class status, but when putative class members are
repeatedly harmed following personnel changes, as the defendant asserts, a systemic issue
capable of class-wide resolution may exist. Such a systemic issue may well be applicable to all,
or at least many, of those injured. That general applicability can support class status. The fact
that thereafter the calculation of damages for each class member would be determined on an
individualized basis is itself insufficient to defeat class status. See Horvath, 149 Fed. Cl. at 748.
At a minimum, unlike the other subclasses proposed by the plaintiffs, this one has facial
plausibility, although the plaintiffs have failed to show commonality on the record before the
Court.
3. Typicality
To establish typicality, the plaintiffs must show that their “claims or defenses . . . are
typical of the claims or defenses of the class.” RCFC 23(a)(3). The plaintiffs claim that their
claims are typical of the potential class because the harm “was caused by the same systemic
policy of the VA since November 23, 2012 . . . when the VA failed to pay officially authorized
14% night premium pay to the subclass of RNs and LPNs at Richmond, Virginia for the
performance of service during nighttime hours.” (ECF 1, ¶ 18.) Neither party makes any
arguments on this point, but because it is the plaintiffs’ burden, they must do more to
demonstrate typicality. By not addressing the requirement of typicality, the plaintiffs have failed
to carry their burden on the issue.
4. Adequacy
To determine whether the adequacy requirement is satisfied, courts consider the adequacy
of class counsel and ensure that class members do not “‘have interests that are “antagonistic” to
one another.’” Barnes, 68 Fed. Cl. at 499 (quoting In re Drexel Burnham Lambert Grp., Inc.,
960 F.2d 285
, 291 (2d Cir. 1992), cert. dismissed,
506 U.S. 1088
(1993)). The plaintiffs assert
that they “do not have interests antagonistic to, or in conflict with, the members of each
subclass” (ECF 1, ¶ 19), “will fairly and adequately protect the interests of the members of each
subclass” (id. ¶ 20), and “have retained competent counsel experienced in class action litigation
and in litigation involving federal pay statutes.” (Id. ¶ 21.) As with typicality, neither party
addresses adequacy and, in the absence of any explanation by the plaintiffs of how they satisfy
this requirement, the plaintiffs have again failed to carry their burden.
5. Superiority
To establish superiority, the plaintiffs must show that a class action is “superior to other
available methods for fairly and efficiently adjudicating the controversy.” RCFC 23(b)(3).
Courts weigh “any potential problems with the manageability or fairness of a class action against
the benefits to the system and the individual members likely to be derived from maintaining such
an action.” Barnes, 68 Fed. Cl. at 499.
13
The parties dispute whether a class action is superior to other methods of adjudication.
The plaintiffs simply assert that “a class action is superior to other available methods for the fair
and efficient adjudication of the controversy.” (ECF 1, ¶ 37; ECF 62 at 3.) The defendant
argues that a class action is inappropriate because the plaintiffs’ claims require individual proof
of damages and joinder is available. (ECF 53 at 12-13.) Although the plaintiffs would certainly
have individualized damages, “differences in individual damages are not determinative of class
certification.” See Haggart, 89 Fed. Cl. at 536; see also Barnes, 68 Fed. Cl. at 498 (“Were such
considerations [individualized damage determinations] determinative, there scarcely would be a
case that would qualify for class status in this court or any other . . . .”). According to the
plaintiffs, those damages would not be difficult to calculate: “the agency can easily determine its
liability to each class member by virtue of their time, attendance, and recorded pay rates which
are embedded in ‘the payroll system.’” (ECF 59 at 16.)
The Court finds that, if the plaintiffs can satisfy their burden on the other elements of
RCFC 23, a class action would be a superior method for resolving the claims of the Richmond
plaintiffs.
6. Conclusion
The plaintiffs must do more than assert that RCFC 23’s requirements are met. They bear
the burden to establish that all those requirements are met. Mercier, 138 Fed. Cl. at 270. Instead
of relying on quotes from other cases without analysis and on general assertions that the
requirements are met, the plaintiffs must apply the facts of their own case to each RCFC 23
requirement. The Court agrees with the plaintiffs that some requirements are met, but their
analysis is not robust enough for the Court to analyze the merits on both sides. In failing to
provide an adequate RCFC 23 analysis, the plaintiffs have not met their burden. Accordingly,
the Court denies, without prejudice, the plaintiffs’ motion as to the potential putative class at the
Richmond facility.7
III. CONCLUSION
The plaintiffs have failed to meet their burden under RCFC 23 for class certification.
Accordingly, the plaintiffs’ amended motion for class certification (ECF 62) is DENIED.
Limited to potential plaintiffs at the Richmond facility, the plaintiffs’ motion to certify a
class based on the Richmond plaintiffs’ claim is DENIED without prejudice. The plaintiffs
may move again for class certification of potential Richmond facility plaintiffs by no later than
February 8, 2021. If the plaintiffs choose to do so, they must analyze each of RCFC 23’s
The plaintiffs based their RCFC 23 analysis on the Hines and Richmond plaintiffs’
7
combined claims. Because the Court denies certification of the proposed class of Hines plaintiffs
and of the proposed national class, the Court denies the Richmond plaintiffs’ class certification
without prejudice so that the Richmond plaintiffs may move again for class certification based on
the Richmond facility alone.
14
requirements with particularity, considering the facts and circumstances of this case. The
plaintiffs’ motion for (1) approval of a postcard providing notice to putative class members; (2)
approval of the official class notice; (3) appointment of Ira M. Lechner as class counsel; and (4)
appointment of Epiq Class Actions & Claims Solutions, Inc. as class-action administrator,
limited to the Richmond plaintiffs, is DENIED without prejudice.
Regarding potential classes consisting of (1) hybrid employees at the Hines facility, (2)
hybrid employees, RNs, and LPNs nationally, and (3) general schedule employees, the plaintiffs’
motion for class certification is DENIED. With respect to these classes, the plaintiffs’ motion
for (1) approval of a postcard providing notice to putative class members; (2) approval of the
official class notice; (3) appointment of Ira M. Lechner as class counsel; and (4) appointment of
Epiq Class Actions & Claims Solutions, Inc. as class-action administrator is DENIED.
The plaintiffs’ motion for oral argument (ECF 64) is DENIED.
It is so ORDERED.
s/ Richard A. Hertling
Richard A. Hertling
Judge
15 |
4,489,441 | 2020-01-17 22:01:51.012764+00 | Trammell | null | *1432OPINION.
Trammell:
The petitioners contend that their shares of the amounts received by the firm for services rendered the Special Coal and Food Commission are exempt from tax on the ground that they were employees of the State of Indiana.
With respect to the creation of the Commission and its rights and duties, Burn’s Annotated Indiana Statutes, Supplement of 1921, provides as follows:
10052g5. Special coal and food commission, members. — 1. There is hereby created a special coal and food commission, Avhich shall consist of the members of the state board of accounts, and which shall possess the powers and perform the duties hereinafter provided for in this act. The members of the state board of accounts shall serve as members of the special coal and food commission, *1433hereby created, without additional compensation, and until the thirty-first day of March, 1921, and no longer, at which time the special coal and food commission' shall cease to exist unless continued by subsequent legislation.
*******
10052n5. Intrastate commerce, regulating and ftscmg prices. — 8. Said commisSion shall have the right and it shall be its duty, after full hearing, and after affording to all persons interested a full opportunity to be heard, to adduce evidence and to be represented by counsel, to regulate and fix the price at which all coal moving in intrastate commerce in the State of Indiana shall be sold, both to jobbers, wholesale and retail coal dealers and to the public, provided that no price so fixed shall be confiscatory, nor shall it be less than the actual cost of the coal plus a fair and reasonable return on the property used in the production and sale thereof. Said prices may be fixed either at so much per ton or on any other basis or scale which is fair, just and equitable, or the commission may prescribe maximum and minimum prices, if it sees fit to do so. If in its judgment, the production of coal in any particular vicinity or of any particular kind of coal can be fairly regulated as to price by one order, the commission shall have power so to fix a price, after notifying all parties in interest of the hearing.
*******
10052b6. Food prices, investigation, report. — 22. Said commission shall also investigate the high cost of food products and profiteering, hoarding and destroying of food products by wholesalers, retailers, dealers, and individuals engaged in the sale and distribution of food products and make recommendations to the governor for the preparation of a bill to be presented to the consideration of the next general assembly recommending such laws as will prevent said profiteering, hoarding and destroying of food and food products used for human consumption on the part of said wholesalers, retailers, dealers, individuals or distributors of such food or food products.
With respect to the employees, attorneys and counsel for the Commission, it is provided:
10052h5. Employees and assistants, organisation, hearings. — 2. Immediately upon the taking effect of this act, the commission shall organize by selecting such engineers, accountants, clerks, assistants and employes as in the judgment of said commission shall be necessary or proper in the performance of its duties. * * * The commission shall fix the salaries and compensation of its employes, clerks, engineers, accountants and assistants, and shall have power to employ and retain attorneys to appear for and represent it in any action brought by or against said commission and to fix the compensation to be paid said attorneys. (Italic ours.)
* * # * * ⅜ *
10052r5. Attorney general, special counsel. — 12. The attorney general of Indiana shall represent the state in any action or proceeding brought by or against the commission and the governor or commission in its discretion may employ and pay special counsel.
It is not disputed that the Commission was exercising sovereign governmental functions or that it was a political subdivision of the State of Indiana. Therefore, it is not necessary to discuss that feature of the case. As there was statutory authority for the em*1434ployment by it of the firm of which the petitioners were members, the question we are called upon to decide here is were the petitioners employees of the State of Indiana or a political subdivision thereof, no contention being made that, they were officers.
Shortly after the creation of the Commission, the firm was employed as counsel during its life which was definitely provided for in the statute. So far as we are able to determine, the firm continued in this employment until the existence of the Commission terminated. While Young had a table in the office of the State Board of Accounts at which he kept regular office hours for several months, it appears that he was required to be there only when necessary to perform the work devolving upon him. In the course of the employment a member of the firm, usually Young, conferred with the Commission almost daily as to matters touching upon the employment. While the agreement of employment contained no provision as to what the compensation of the firm should be, it did provide that the firm at all times should be at the call of the Commission and should do such work as it requested. All the work that was done by the firm in this employment was done under the direction of the Commission, Avhose judgment as to the action to be taken was final.'
In Blair v. Mathews, 29 Fed. (2d) 892, there was involved the question as to whether the compensation of a county attorney was subject to tax. There the court said:
The contract bound the taxpayer for a period of two years to attend to all lega! matters for the county. He was not engaged to accomplish any particular result in a way chosen by himself, but was obligated to render any legal service for the county to which at any time during the period mentioned he was assigned by the Board of County Commissioners. One whose services are so at the command of another for a definite time is an employee of the latter, though the services contracted are legal services of a lawyer, who is not forbidden to render professional services to others. Seaboard Air Line Railway v. Continental Trust Co., 166 Fed. 597.
In D. F. Strickland et al., 16 B. T. A. 419, we expressed our concurrence in the rule laid down by the court, stating that we thought it is the sound and correct rule and in accordance with the principles laid down in the decision of the Supreme Court in Metcalf & Eddy v. Mitchell, 269 U. S. 514. We think the rule in the Mathews case is applicable in the instant case and are therefore of the opinion that the petitioners were employees of the Commission. Being such, their compensation therefrom is exempt from tax. See Howard v. Commissioner, 29 Fed. (2d) 895.
With respect to their distributive shares of the amounts received by Fesler, for his services as receiver for the William Small Co., the petitioners contend that such income was also exempt. In support *1435of the contention they insist that the amounts were not taxable to Fesler because they were received by him for his services as receiver appointed by a state court and, thus being exempt, they continued to be immune from the tax after having been turned into the firm and distributed between Fesler and the petitioners according to the amount of the partnership profits each was entitled to receive.
In Alfred S. Frank, 16 B. T. A. 771, we had before us a case involving a similar question to that involved here. In that case we said:
We do not deem it essential to this decision to decide whether or not Brown was an employee of a political subdivision of the State of Ohio. Brown is not the petitioner. We have before us the partner, Frank, who claims that the mantle of immunity which might shield Brown as to income paid to him also protects the partner in so far as his distributive share of the partnership proceeds represents a division of the salary paid to Brown and turned in by him to the partnership. With this contention we can not agree.
****** *
Though this section [section 1211 of the Revenue Act of 1926] deals primarily with refunds, it seems clear that Congress contemplated that the immunity be personal to the person receiving- the same “ as compensation for personal services as an officer or employee of any State or political subdivision thereof * * We believe this section to be merely enuneiatory of the general rule of law covering the scope of the immunity afforded the employees of one government from taxation by another. Here Brown’s salary was paid in to the partnership and indiscriminately mixed with funds received from other sources. A decision as to the legal effect of such a commingling as to Brown’s income is not pertinent here, but to extend immunity to the share of the partnership income received by petitioner would be stretching the doctrine beyond reason or precedent. Frank was at no time an employee of the District. He received no income therefrom. It would do violence both to the language and spirit of the Act and to the general rule of law to relieve him from the tax in question.
Fesler’s tax liability is not involved in the instant proceedings, and in view of our holding in the Frank case, we deem it unnecessary to determine whether his compensation for services as a receiver was exempt. This contention of the petitioners must be denied.
The remaining contention relates to the taxability of the petitioners’ distributive shares of certain income received by them as attorneys for Fesler, in his capacity as receiver, and certain other income received by the firm as attorneys for other receivers. The petitioners contend that such income is exempt for the reason that attorneys for receivers in Indiana are employees of the State. In support of this contention petitioners urge that, since under the Indiana statutes a receiver is entirely subject to control by the court as to all his acts, including the litigation carried on by his attorneys, the attorneys are also subject to the control of the court. They further urge that attorneys are officers of the court; that, being attorneys for a receiver, they were assistants to the court, performing *1436governmental work, and the performance of such work made them state employees. They also urge that in their cases they were appointed by the court as attorneys for the receiver.
In Fleming v. Bowers, 11 Fed. (2d) 789; affd. 27 Fed. (2d) 128, the court had before it the question as to whether a Federal court receiver was an officer or an employee of the United States. The court said:
Courts, of course, are an instrumentality of the sovereignty under which they function, but it does not follow that every person who is called upon by the court to a,id in the performance of its duties thereby becomes an officer or employee of the sovereign that created the court. An attorney at law is rightfully said to be an officer of the court in which he is duly admitted to practice. But he is not, for such reason, a governmental officer or employee. Nor does he become such if the court appoints him to act as a master to hear testimony and report to the court, or assigns him to defend an impecunious person charged w.ith an offense against the government. In such appointments, * * * the court merely calls to its assistance, in the performance of its duties, a person who is considered competent to further the ends and purposes of the judicial establishment, and no change in the attorney’s previous status, as respects the government, is brought about.
The language of the court with respect to receivers is applicable with even greater force in the case of attorneys for receivers. They are a step further removed from the exercise of sovereign power. Even if receivers were officers or employees of the State, attorneys rendering legal services to receivers are engaged in the work of their profession and their status is not changed because a client happened to be a receiver.
Nor do we think that the tax here involved impairs to any substantial degree the right of the State to carry out its sovereign powers. Accordingly, we are of the opinion that the income here being considered is not exempt from the tax. Metcalf & Eddy v. Mitchell, supra.
At the hearing there developed some difference between the parties as to the amount received in 1922 for the services of Elam and Young, as attorneys for Fesler, in his capacity as receiver for the William Small Co. The respondent admitted $2,000 was received, while the petitioners contend that the amount was $2,500. The evidence shows the amount to be $2,500 and we have so found.
Judgment will he entered under Rule BO. |
4,489,443 | 2020-01-17 22:01:51.087484+00 | Geeen | null | *33OPINION.
Geeen:
The question presented in this proceeding is whether the respondent erred in including as a part of the decedent’s gross estate under the provisions of section 402(c) of the Revenue Act of 1921, an amount of $41,764,241.04 representing the value as of the date of the decedent’s death of various properties transferred by the decedent within two years prior to his death. The parties now agree that the value of such properties as of the date mentioned was only $36,766,376.17 and that the value of the property put in issue by the respondent’s amendment to his answer, which the respondent now claims should also have been included in the gross estate, was $24,000. The provisions of section 402(c) are:
Sec. 402. That the value of the gross, estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated- — ■
*******
(c) To the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has at any time created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death (whether such transfer or trust is made or created before or after the passage of this Act), except in case of a bona fide sale for a fair consideration in money or money’s worth. Any transfer of a material part of his property in the nature of a final disposition or distribution thereof, made by the decedent within two years prior to his death without such a consideration, shall, unless shown to the contrary, be deemed to have been made in contemplation of death within the meaning of this title.
The three contentions of the petitioner as to why none of the items totaling $36,790,376.17 should be included as a part of the decedent’s gross estate have been mentioned in our preliminary statement. We will discuss the second contention first, namely, that the various transfers were not made in contemplation of or intended to take effect in possession or enjoyment at or after the decedent’s death.
The meaning of the phrase “ in contemplation of death ” has been construed by the courts and by this Board in a large number of cases.
In Rea v. Reiner, 6 Fed. (2d) 389, the District Court for the Western District of Pennsylvania had before it the question whether certain transfers were made in contemplation of death within the meaning of section 402 (c) of the Revenue Act of 1918, which section is identical with section 402 (c) of the 1921 Act. In the course of the opinion, the court said:
Under the authorities the words “in contemplation of death” have a distinctive meaning. Lord Mansfield once said: “We all have in us the seeds *34of mortality. But ‘contemplation of death’ is not the general knowledge of all men that they must die at some time.”
The Court then quotes from four decisions, cites four others and continues as follows:
These principles have been applied with great uniformity in the adjudicated cases, both in the state and federal courts. There is a common agreement that the words “contemplation of death ” mean not the general knowledge of all men that they must die; that it must be a present apprehension, from some existing bodily or mental condition or impending peril, creating a reasonable fear that death is near at hand; and that, so arising, it must be the direct and animating cause, and the only cause, of the transfer. If this apprehension, so arising, is absent, there is not that contemplation of death intended by the statute, especially when another adequate motive actuating the gift is shown.
In Meyer v. United States, 60 Ct. Cls. 474, we find the following language:
A review of the authorities is scarcely necessary to sustain the proposition that the contemplation of death referred to in the statute is not that contemplation of death which must he present with all of us, mindful of its certainty at some time, we know not when, but it is that state of mind which by reason of advanced age, serious illness, or other producing cause induces the conviction that death in the near future is to be anticipated. If it be said that there need not be a conviction that death is imminent, there must at least he a belief that it is to be expected in the very near future rather than in the usual course of events; and in this state of mind, in this belief in the near approach of death, must be found the motive for the conveyance if it is properly to be characterized as made in contemplation of death.
In Flannery v. Willcuts, 25 Fed. (2d) 951, the Circuit Court of Appeals for the Eighth Circuit, in reversing the District Court and holding that certain transfers made by Mary T. Hill (the widow of James J. Hill) were not made in contemplation of death, said:
We are also in accord with counsel’s statement in his brief that the eases “hold that the thought of death must be the actuating motive without which the gift would not have been made ” — adding thereto the qualification that the “ thought of death ” as an anticipation of the inevitable which we all realize is not within the statute; but to be within the statute the thought must arise because of some known infirmity which, it is believed, will likely cause death.
In United States Trust Co. of New York, Executor, 14 B. T. A. 312, we said:
* * * The term “ contemplation of death ” is meant an apprehension of death within the reasonably near future from some existing bodily or mental condition, and not the general expectation of ultimate death entertained by everyone, and that such contemplation of death must be the motive which prompted the transfer and without which the transfer would not have been made, in order to include the transferred property in the estate of the decedent subject to tax.
To the same effect, see Starck, Executor, 3 B. T. A. 514; Spofford, Administratrix, 3 B. T. A. 1016; Phillips, Executor, 7 B. T. A. *351054; Stein et al., Executors, 9 B. T. A. 486; Davis, Executrix, 9 B. T. A. 1212; Gimbel et al., Executors, 11 B. T. A. 214; Illinois Merchants Trust Co., Executor, 12 B. T. A. 818; McCormick et al., Executors, 13 B. T. A. 423; Crilly et al., Executors, 15 B. T. A. 389; and White et al., Executors, 15 B. T. A. 470.
Examining the facts in this case in the light of the above construed meaning of the phrase “ in contemplation of death,” we find a man, over four score years of age, actively engaged not only in managing the affairs of two of the largest department stores of the United States, but taking a vigorous part in numerous other business and community affairs as well. We find him cheerful, optimistic, mentally alert and planning far into the future. True, due to an enlarged prostate, he had been carrying for over ten years an indwelling catheter, which had to be changed every five days, but after the first two months his body had built up such an immunity to this condition that there was no longer any danger from its use. It had no effect on his general condition of health and had nothing whatever to do with his death. Outside of the catheter, and a predisposition to colds in cold weather, he was in excellent physical condition. He contracted a cold in September, 1922, which developed into bronchial pneumonia from which he died on December 12,1922. Over 70 witneses testified and over 70 exhibits were offered on behalf of the petitioner, and the record is replete with facts and circumstances showing that death was the farthest from John Wanamaker’s mind. He told several people that he expected to live to be a hundred. He was planning on taking a very active part in the celebration of the Sesqui-Centennial to be held in 1926, had promised to be the principal speaker at an anniversary in 1932, and had in mind visiting Japan at some time in the distant future. Such facts do not indicate “ a present apprehension, from some existing bodily or mental condition or impending peril, creating a reasonable fear that death is near at hand.”
A.total of over 360 letters and telegrams written by John Wanamaker during the last three years of his life, and representing all of such writings that could be found, were put in evidence by the parties. The letters introduced by the respondent are in themselves almost sufficient to overcome the presumption contained in the statute. These letters, written by a father to a son who was the dearest to him of all people in the world, are spontaneous and confidential. They give us a clear conception of what the writer thought, of his outlook upon life and of his own ideas as to his physical condition. The first four letters appearing in our findings were introduced by the petitioner and the last four by the respondent. The most damaging letter (if such it may be called) from the petitioner’s viewpoint, *36of all the letters introduced, is the letter written on January 9 and .10. 1921, where he said “ Slept like a Top feel stronger but still higgiedly piggedly on my two feet — Inside I feel I am 55 yrs. old but walking with an old fellow shaky on his legs — but oh so much better am I than the man you led into the train at 16 Dec — ,” which part of the letter the respondent has constantly emphasized in his brief and oral argument. We, however, fail to see anything in this letter indicating that the writer was alarmed at his condition, but, on the contrary, we see a man at that moment very much interested in fishing, humorously referring to his age and his rapid recovery of his strength. Others parts of the same letter are “ Eised me at 6:45 on deck at 8 — thermo 75 — a very fine morning — less wind — sea smoother — dressed in my fishing clothes hoping for a good catch— * * * We are contentedly filling in our time waiting arrival of Wakita to fly like an Eagle swift! instead of a Gadfly adrift! Hear, Hear! * * * Now for codfish breakfast & then to the fishing reefs.”
The evidence also shows that for at least 8 years prior to the transfers in 1920, it had been the intention of John Wanamaker to give the business to Eodman. Without deciding the question of ownership of the stock of the two New York corporations, we find that John Wanamaker, from time to time, as additional capital was contributed, assigned additional stock in these corporations to Eodman until by January 11, 1918, there had been assigned to him all of the stock of the A. T. Stewart Eealty Co. and 51 per cent of the stock of John Wanamaker, New York. Following the death of Thomas, in 1908, the dividends from the two stores, until 1920, were divided equally between father and son, regardless of stock ownership. There were no dividends declared by the A. T. Stewart Eealty Co. When Wanamaker first spoke to Nevin about his intention to give the business to his son, the corporations were operating with a very large amount of borrowed capital. In order to improve the appearance of the balance sheet, Wanamaker felt it necessary, in 1917, to convey the Philadelphia store building and the real estate upon which it was situated, to the Philadelphia corporation. Again, in 1919, he found it advisable to convey to the corporation large amounts of Philadelphia real estate owned by him. The situation was not easy to handle and obviously was not such as to justify his turning over the business to Eodman and throwing upon him at that time the sole responsibility and liability. By 1920 the situation had greatly improved and while the enterprises were not then clear of their heavy borrowings, it could reasonably be anticipated that in the near future they would be in a satisfactory financial condition. At that time he told Nevin that “ the business was now in condition or in such shape that he could carry out the intention he had had *37for some years past, to give the business to Ms son.” The transfers here in question, the details of which we have set out in our findings, wore then made.
It should also be noticed that the effect of the transfers made in December, 1920, was to make inoperative several provisions of John Wanamaker’s will, made on May 14, 1914. About four years after the will was made, a codicil was made, which took care of the changes that had been made in the interim, such as the transfer of the Philadelphia store to the Philadelphia corporation. In his will and the codicil thereto, John Wanamaker had very carefully directed the disposition to be made of his entire estate. The transfers made by him in the fall of 1920 left him with only a small portion of the property theretofore owned by him. Many of the provisions in the will for specific bequests have failed because at the time of his death he did not own the property bequeathed. An example of this is to be found in the provisions of the will by which 49 per cent of the stock of John Wanamaker Philadelphia was to be placed in trust. Other provisions of the will have been rendered in whole or in part inoperative by reason of the transfers. It seems probable to us that if the apprehension of death was the motivating cause of the transfers in 1920, John Wanamaker would at the same time or within a reasonable time thereafter, have made a new will, a will which took into consideration his greatly reduced holdings and one which directed the disposition of only such property as he then owned and which would care for those whom he was most anxious to care for.
There is nothing in the record in this case that indicates that John Wanamaker ever contemplated death, using that phrase in the sense in which it is used in the cases cited above. The gifts could not, therefore, have been made in contemplation of death. Furthermore, we find that the real motive for making the gifts was his long existing desire to see, during his lifetime, the son, whom he most dearly loved, and who had worked with him for over 40 years, in full ownership, possession and control of the business they had built up together.
The second part of the petitioner’s second contention is that the properties of the value of $36,790,376.17 should not be included as a part of John Wanamaker’s gross estate, because such transfers were not intended to take effect in possession or enjoyment at or after Wanamaker’s death. With the exception of the transfer of the preferred stock, which we will later discuss, there can be no doubt whatever that the transfers were not and could not have been so intended. The fact is that on December 14,1920, Rodman became the sole owner of all of the stock of John Wanamaker Philadelphia, which corporation owned all of the two New York corporations. The gift was *38absolute, complete, irrevocable and unconditional on that day. The transfers took effect in possession and enjoyment at that time.
Did John Wanamaker intend the transfer of the preferred stock of John Wanamaker Philadelphia to the Fidelity Trust Co. in trust for his daughters, to take effect in possession or enjoyment at or after his death? We have already found that he did not make the transfer in contemplation of death. In creating the trust in which the Fidelity Trust Co. was named trustee, the settlor reserved unto himself no powers whatever. The transfer of the stock to the trustee was absolute and left the decedent without any interest or control therein. The respondent contends that the stock res itself carried to the beneficiaries no scintilla of further or additional beneficial interest in the business than the dividends which were not to begin to accrue until six months after John Wanamaker⅛ death; that in effect the stock was no more than an ordinary promissory note of the corporation; and that the enjoyment of the trust being thus specifically limited to a receipt of income by way of guaranty dividends accruing six months after the settlor’s death, powerfully indicates that the whole trust is of the nature described by the statute as being one intended to take effect in possession and enjoyment at or after the death of the settlor. This contention, however, overlooks the last paragraph of the stock certificate, which provides that “Upon dissolution, voluntary liquidation, or sale of all the property, and assets, of John Wanamaker Philadelphia the payment of the Preferred Capital Stock shall be deferred to the payment of the Common Capital Stock; after the Common Capital Stock has been paid, in full, at par, the Preferred Capital Stock shall be paid, in full, at par; * * In other words, if for any reason the corporation had been dissolved after the transfer of the preferred stock to the trustee, the latter would have received, after the common stock had been paid in full at par, $1,000,000 for the preferred stock and the beneficiaries would have received income from the investment of this amount immediately and without regard to whether the settlor were living or dead.
In Reinecke v. Northern Trust Co., 278 U. S. 339, the Supreme Court of the United States had before it the question whether seven different trusts or any of them were intended to take effect in possession or enjoyment at or after the settlor’s death, within the meaning of the identical section of the statue we are now considering. In two of the trusts, the settlor had reserved a power of revocation and for that reason the Supreme Court held they were within the statute. In the other five trusts, the settlor reserved to himself power to supervise the reinvestment of trust funds, to require the trustee to execute proxies to his nominee, to vote any shares of stock held by the trustee, to control all leases executed by the trustee, and to ap*39point successor trustees. A power was also reserved “to alter, change or modify the trust,” which was to be exercised, in the case of four of the trusts, by the settlor and the single beneficiary of each trust, acting jointly, and in the case of the other one, by the settlor and a majority of the beneficiaries named, acting jointly. Notwithstanding the powers reserved to the settlor in the last five trusts, the Supreme Court, through Mr. Justice Stone, held that such trusts were not within the statute. The opinion reads in part as follows:
In its plan and scope the tax is one imposed on transfers at death or made in contemplation of death and is measured by the value at death of the interest which is transferred. (Citations). It is not a gift tax and the tax on gifts once imposed by the Revenue Act of 1924, C. 234, 43 Stat. 313, has been repealed, 44 Stat. 126. One may freely give his property to another by absolute gift without subjecting himself or his estate to a tax, but we are asked to say that this statute means that he may not make a gift inter vivos, equally absolute and complete, without subjecting it to a tax if the gift takes the form of a life estate in one with remainder over to another at or after the donor’s death. It would require plain and compelling language to justify so incongruous a result and we think it is wanting in the present statute.
It is of significance, although not conclusive, that the only section imposing the tax, sec. 401, does so on the net estate of decedents and that the miscellaneous items of property required by sec. 402 to be brought into the gross estate for the purpose of computing the tax, unless the present remainders be an exception are either property transferred in contemplation of death or property passing out of the control, possession or enjoyment of the decedent at his death. They are property held by the decedent in joint tenancy or by the entirety, property of another subject to the decedent’s power of appointment and insurance policies effected by the decedent on his own life, payable to his estate or to others at his death. The two sections read together indicate no purpose to tax completed gifts made by the donor in his lifetime not in contemplation of death, where he has retained no such control, possession or enjoyment. In the light of the general purpose of the statute and the language of sec. 401 explicitly imposing the tax on net estates of decedents we think it at least doubtful whether the trusts or interests in a trust intended to be reached by the phrase in sec. 402(c) “to take effect in possession or enjoyment at or after his death,” include any others than those passing from the possession, enjoyment or control of the donor at his death and so taxable as transfers at death under sec. 401. That doubt must be resolved in favor of the taxpayer. Gould v. Gould, 245 U. S. 151, 153; United States v. Merriam, 203 U. S. 179, 187.
Wanamaker retained no right, title or interest in the preferred stock and we are clearly of the opinion that the gift was to take effect immediately and not at or after his death and since it was not made in contemplation of death, the value thereof should not be included in the gross estate.
Under a Pennsylvania statute (1919 P. L. 521, sec. 1 (c)), which in the essentials is practically identical with the Federal statute here under consideration, the Commonwealth of Pennsylvania endeavored to tax the transfers of the common and preferred stocks of John Wanamaker Philadelphia as being transfers made in contemplation *40of or intended to take effect in possession or enjoyment at or after death. Appeals were taken to the Orphans’ Court of Philadelphia County, and on September 13,1926, Judge Gest rendered his decision in favor of the estate. See Estate of John Wanamaker, Orphans’ Court of Philadelphia County, October Term, 1924, No. 3792. Exceptions were filed by the Commonwealth and a reargument had before the Orphans’ Court of Philadelphia County sitting en hanc. Five judges, including Judge Gest, considered the exceptions, and in an opinion by Judge Henderson, 8 District and County Eeports 569 (1926), the court dismissed the exceptions and sustained Judge Gest’s adjudication. The Commonwealth did not appeal to the Supreme Court of Pennsylvania within the three months allowed, and in so far as the Pennsylvania inheritance tax is concerned, the case is now concluded with decisions in favor of the estate from which no appeals can be filed. In Phillips, Executor, 7 B. T. A. 1054, involving a similar situation, we said, in part, p. 1060:
While such finding is not conclusive upon this Board, it is entitled to weight, especially in view of the similarity of the Illinois statute to the Federal statute on the same subject of taxing gifts, transfers, etc., made in contemplation of death.
In conclusion, we find and hold that none of the various transfers here in question were made by John Wanamaker in contemplation of or intended to take effect in possession or enjoyment at or after his death, within the meaning of section 402(c) of the Eevenue Act of 1921, and it, therefore, becomes unnecessary to discuss the petitioner’s first and third contentions. The deficiency, if any, should be recomputed by eliminating from the gross estate as determined by the respondent, the several items totaling $41,764,241.04, previously itemized by us in our findings.
Eeviewed by the Board.
Judgment will he entered under Rule 50. |
4,489,445 | 2020-01-17 22:01:51.136313+00 | Makquette | null | *164OPINION.
Makquette:
The first question presented by the record herein is whether the respondent erred in changing the petitioner’s returns of income for the years 1919,1921, and 1923 from a calendar year to a fiscal year basis. The parties agree that if we resolve this issue in favor of the petioner, the question relative to the running of the statute of limitations will be obviated.
*165We are not advised of the reason that moved the respondent in his determination that the petitioner’s returns should have been made on the basis of a fiscal year. The only fact that has been brought to our attention that might be construed as a ground for that act is that the petitioner’s books which were kept during the years for which the returns in question were made had been opened as of October 1, 1918, and that they were “ ruled off ” on September 30 of each year. However, they were not closed on September 30 of any year on an annual basis, and the evidence clearly and convincingly negatives any action or intent on the part of the petitioner’s officers to keep them or to report its income on other than the basis of a calendar year. It was the consistent practice of the petitioner in the year 1918 and prior years to report its income on the calendar year basis, and it followed that practice during the years 1919 to 1923, inclusive. The petitioner’s books clearly reflect its income for the calendar years and under the circumstances we see no reason, either in fact or in law, warranting the respondent in requiring the petitioner to change to a fiscal years basis. In the case of Pittsburgh Bridge & Iron Works, Inc. v. Heiner, 25 Fed. (2d) 900, sustaining the taxpayer’s return of income on a calendar year basis, the c ourt said:
While the books of the corporation were ruled off as if closed on a yearly period ending May 31st, of each year, the witness testified that he considered that the hooks of the company were on a monthly basis, because an accurate profit and loss statement, as well as a balance sheet, were taken off each month and these statements were preserved as original records of the company. * * *.
The method adopted by the plaintiff must be regarded with favor because it was the method continuously adopted for the period of ten years or more, and exhibiting to the Board of Directors, who were vitally interested in knowing the exact financial condition of the company, the profit and loss from mouth to month. It is entirely clear that the return for 1917, was a calendar year return. I am by no means satisfied that the method adopted by the Commissioner of taking two full fiscal years and then obtaining a calendar year return by taking 5/12ths of 1917, and 7/12ths of 1918, reflects with as much accuracy, the true net income for the year 1917, as that shown by the plaintiff’s return. As no evidence was offered on the part of the defendant, there was no effort to justify the arbitrary allocation of income.
See, also, Darling-McDuff Coal Co., 15 B. T. A. 110; Marlboro Fertilizer Co., 3 B. T. A. 82, and Clinchfield Navigation Co. v. United States, 66 Ct. Cls. 589. We are of opinion that the petitioner was justified in making its return of income for calendar years, and we so hold.
The next question is whether* the petitioner is entitled to deduct in 1923 the additional compensation paid in that year to its editor and manager for the years 1919 and 1921. The evidence relative to this issue shows that the petitioner’s board of directors in 1918 authorized for its editor and general manager an annual salary of $9,600 *166each. Such salaries were, however, not paid in the years for which they were authorized and they were not accrued on the petitioner’s books, and it claimed as deductions from income in those years only the amounts actually paid therein. Further payments of salaries for the years in question were made in 1923, but the amount paid in 1923 added to the amounts already paid did not in any year exceed the yearly compensation theretofore authorized by the board of directors. It further appears that it was the practice of the petitioner to keep accounts covering salaries, pay rolls, classified advertising, and subscriptions, on the cash basis, and that foreign and domestic advertising was kept on the accrual basis. The petitioner’s witnesses appear to be in doubt as to whether its books were kept on the cash or the accrual basis. Regardless, however, of the opinion of the petitioner’s officers, it-is clear that the books must be considered as kept on the accrual basis. Madison & Kedzie State Bank, 1 B. T. A. 922. This being the case the petitioner should have accrued on its books, for the years 1919 and 1921, the salaries authorized for its editor and manager for those years, even though they were not paid until a subsequent year.
It is clear that for the years 1919 and 1921 the petitioner’s officers voted salaries of $9,600 each to its editor and manager. There appears to be no question as to the reasonableness of the amount, and, since the petitioner’s books were kept on the accrual basis, we are of opinion that such salaries were proper deductions from gross income for the years 1919 and 1921, but that no part thereof is deductible from income in the year 1923. It appears that part of the additional salary paid in 1923 was for the year 1920. That year, however, is not before us.
The record herein discloses that the petitioner was delinquent in filing its return of income for the calendar year 1921, and that it paid a delinquency penalty of 25 per cent of the tax shown due on the return. The additional delinquency penalty asserted by the respondent is for the fiscal year September 30, 1921, Since we have held that the petitioner was on a calendar year basis, it follows that no return was required for the fiscal year ended September 30, 1921, and that no penalty can legally be imposed for failure to make a return for such fiscal year.
The hearing in this case was limited to the issues raised other than the question of special assessment under sections 327 and 328 of the Revenue Acts of 1918 and 1921.
Reviewed by the Board.
Further proceeding will he had under Rule 62 (5).
LittletoN, LaNsdoN, Phillips, Millikeh, and Murdock dissent. |
709,423 | 2012-04-17 06:25:02+00 | null | http://bulk.resource.org/courts.gov/c/F3/71/71.F3d.882.94-9333.html | 71 F.3d 882
Century Springs
v.
Endowment**
NO. 94-9333
United States Court of Appeals,
Eleventh Circuit.
Nov 13, 1995
1
Appeal From: N.D.Ga., No. 91-01908-1-CV-RLV
2
AFFIRMED.
**
Local Rule 36 case |
4,638,811 | 2020-12-02 17:12:17.092731+00 | null | http://www.pacourts.us/assets/opinions/Superior/out/J-A23022-20m - 104621524121123689.pdf | J-A23022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KEENAN AND SHADE LAWSON, H/W : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
ALBERT EINSTEIN MEDICAL CENTER : No. 889 EDA 2019
Appeal from the Judgment Entered October 3, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 3214 June Term 2016
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 02, 2020
Keenan (Lawson) and Shade Lawson, h/w (collectively, the Lawsons)
appeal nunc pro tunc from the judgment entered on October 3, 2019, in favor
of Albert Einstein Medical Center (Einstein) in the Court of Common Pleas of
Philadelphia County (trial court). Specifically, the Lawsons argue that the trial
court erred in giving a misleading non-standard citizen’s arrest jury
instruction.
This contention is perplexing because Lawson did not plead there was
false imprisonment, an illegal detention or an illegal citizen’s arrest and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A23022-20
Einstein did not plead that there was a proper citizen’s arrest as a defense.1
Nonetheless, both the Lawsons and Einstein and the trial court focus on the
____________________________________________
1 “The concept of citizen’s arrest as it has been developed by the courts is
almost exclusively used as defense or justification on the part of the arresting
person. In tort law the citizen’s arrest is defined as a privilege that prevents
an intentional invasion of another person’s interests, which otherwise would
constitute assault, battery, and false imprisonment, from being tortious and,
therefore, the basis for civil liability. The conditions required to establish the
privilege, generally stated, are that a felony has been committed and that the
actor reasonably suspects that the person whom he arrests has committed
the felony. See Mahaffey v. Byers,
25 A. 93
(Pa. 1892); see generally
Restatement (Second) of Torts, §§ 118, 119, 127.” Commonwealth v.
Corley,
491 A.2d 829
, 833–34 (Pa. 1985).
Section 118 of the Restatement (Second) provides that “a private person is
privileged to arrest another without a warrant for a criminal offense
(a) if the other has committed the felony for which he is arrested,
or
(b) if an act or omission constituting a felony has been committed
and the actor reasonably suspects that the other has committed
such act or omission, or
(c) if the other, in the presence of the actor, is committing a
breach of the peace or, having so committed a breach of the
peace, he is reasonably believed by the actor to be about to renew
it, or
(d) if the other has attempted to commit a felony in the actor’s
presence and the arrest is made at once or upon fresh pursuit, or
(e) if the other knowingly causes the actor to believe that facts
exist which would create in him a privilege to arrest under the
statement in Clauses (a) to (d).
Our Supreme Court expressly declined to reach “the propriety of the Superior
Court’s holding that a citizen may arrest for a misdemeanor breach of the
peace committed in his presence.” Commonwealth v. Corley, 491 A.2d
-2-
J-A23022-20
propriety of a citizen’s arrest, even though they differ on when the citizen’s
arrest occurred and for what offense he was arrested.
Nonetheless, for the reasons that follow, we affirm.
I.
We take the following factual background and procedural history from
the trial court’s April 11, 2019 opinion and our independent review of the
certified record.
On June 28, 2016, the Lawsons filed a civil personal injury complaint
against Einstein for assault and battery, intentional infliction of emotional
distress and loss of consortium related to an incident that occurred at
approximately 3:00 A.M. on the morning of July 1, 2014. The Complaint
alleged Lawson picked up a husband and wife and transported the husband to
the hospital because he was shot. After Einstein Security Officers secured the
car and Lawson exited (First Interaction), the Complaint alleged:
7. Upon [Lawson’s] arrival at the front entrance of the
emergency room, the woman [(wife)], who was assisting the
wounded man [(husband)] inside, requested that Plaintiff Keenan
Lawson hold a few items while she assisted him into the hospital.
8. Plaintiff Keenan Lawson noticed that one of the items was
a bag which appeared to contain a small amount of marijuana and
he indicated to the woman that “she couldn’t take that into the
hospital with her.”
____________________________________________
829, 834 (Pa. 1985). We note that Corley was a suppression case and a
citizen’s arrest was not being used as a defense to a civil claim.
-3-
J-A23022-20
9. While Plaintiff Keenan Lawson was holding the items, an
Albert Einstein security guard stated that “you better get rid of
that before the police arrive.”
10. Plaintiff Keenan Lawson walked a few steps to throw the
bag into a nearby trash can when suddenly and without warning,
he was attacked by about five (5) Albert Einstein security guards,
one of whom stated “oh, so now you are trying to run.
11. At that juncture, Plaintiff Keenan Lawson, in the
presence of his wife, Shade Lawson, was handcuffed by these
security guards and then brutally beaten despite the fact that
Plaintiff Keenan Lawson offered no resistance whatsoever
[(Second Interaction)].
(Complaint, 6/28/16, at 2) (pagination provided).
Einstein filed an Answer with New Matter on September 7, 2016, in
which it stated, in relevant part, that it did not “wrongfully, maliciously,
intentionally, or without cause illegally or wantonly assault [Lawson].”
(Answer with New Matter, 9/07/16, at Paragraph 34). It did not raise a
citizen’s arrest defense. At trial, the following pertinent facts were adduced.
A.
1.
Lawson testified that at approximately 3:00 A.M. on the morning of July
1, 2014, he woke up hungry and went to a local Chinese restaurant where a
woman, Monique Taylor, asked him if he would give her a ride home. (See
N.T. Trial, 3/29/18 (Volume 1), at 69-70). As the two drove on Germantown
Pike in Philadelphia, a man bleeding from a gunshot wound and his wife
flagged down Lawson because they had just been robbed and needed a ride
to the emergency room. (See id. at 70-71). The two individuals got in the
-4-
J-A23022-20
back seat of Lawson’s vehicle and he took them to Einstein. (See id. at 72-
73). The gunshot victim went into the hospital and his wife stayed behind to
give Lawson some marijuana in her possession so she would not be caught
with it in the hospital. (See id. at 73-74). He testified that without providing
him any reason, the Einstein security guards immediately told him to give
them the keys to his car and that he and Taylor had to vacate the vehicle.
(See id. at 74-76). Lawson immediately got out of the car, gave the security
guards his keys and walked away to call his mother. (See id. at 74, 76).
While on the phone, several security guards rushed him, threw him to the
ground, punched and kicked him and started searching his pockets. (See id.
at 76-77). Lawson testified that he immediately told the officers he was
licensed to carry a firearm. (See id. at 77).
2.
Einstein Security Officer Wesley Applegate testified to slightly different
facts. During his testimony, he explained to the jury what was occurring on
an Einstein security tape of the incident and his motivations for the actions
shown on that video. The officer testified that when Lawson pulled up in his
vehicle, he approached to ask what was going on and to see if there was any
blood or bullet holes inside of it because it could be a crime scene (First
Interaction). (See N.T. Trial, 4/03/18 (Volume 3), at 149, 152-154). The
security guards do not carry guns or wear bulletproof vests. (See id. at 155).
The officer saw blood “all over the back seat.” (Id. at 152). He did not see
-5-
J-A23022-20
any weapons and neither Lawson nor Ms. Taylor told him that they possessed
either a gun or marijuana. (See id. at 152, 158). He testified that out of the
corner of his eye, he might have seen the gunshot victim’s companion hand
something to Lawson, but he was not sure. (See id. at 155-56). When
Lawson got out of the vehicle so that the security guards could tape off the
area as a crime scene, Lawson was cursing and upset. (See id. at 155, 158).
Officer Applegate, who was trained to de-escalate such situations, explained
to the visibly upset Lawson that the police were on their way and would want
to talk to him, but that he was not in trouble. (See id. at 154-58). The officer
stated that he did not know at what point Lawson decided that he would stay.
(See id. at 155).
As Lawson began to walk away from the officer, a verbally aggressive
Ms. Taylor approached, “yelling and cursing at [him].” (Id. at 159, 162). The
videotape showed that Lawson had walked to an adjacent parking lot for
patients and visitors to the emergency room and labor and delivery. (See id.
at 159-60). At the time of the incident, Officer Applegate was focused on de-
escalating the situation with Ms. Taylor and did not see where Lawson walked
off to when the guard “heard someone say, ‘He has a gun, he has a gun.’”
(Id. at 162; see id. at 159). The officer’s immediate concern was for the
safety of patients, visitors, himself and his fellow officers. (See id. at 163-
65).
-6-
J-A23022-20
Upon hearing “he has a gun,” Officer Applegate and approximately four
or five other security officers ran to the area. (See id. at 166, 172). “[They]
perceived that [Mr. Lawson] had tripped and fell and then one of [the] officers
jumped on top of him because they see his hand keep going to his waistband.”
(Id.). The responding officers did not beat, kick or punch Lawson or tear at
his clothes. (See id. at 171). Officer Applegate explained that two officers
could be seen on the videotape trying to grab Lawson’s arms out from under
him because he could be reaching for the gun to shoot others or it could go
off and harm him, and it was the officers’ responsibility to protect everyone
on Einstein property, including Lawson. (See id. at 172-73). He testified that
in his experience, when he sees someone reaching into his waistband, it has
been for a weapon. (See id. at 167).
The officer agreed with counsel that prior to the gun incident, the
videotape showed at least four minutes of him trying to de-escalate the
situation before Mr. Lawson walked away. (See id. At 166-67). When asked
if there “would [have] been anything preventing [Lawson,] if he had not shown
that he was going for his gun[,] from just walking down that driveway and
walking on out of there[,]” the officer responded, “No, ma’am.” (Id. at 167).
3.
Corporal Raymond Sutton, Einstein Security Supervisor, also testified
about what was occurring on the security videotape and his involvement in
the incident. He testified that after Officer Applegate called in a gunshot
-7-
J-A23022-20
victim, Corporal Sutton and other security guards came outside. (See id. at
206). As he approached, the corporal observed Officer Applegate speaking
with an agitated Lawson who had slammed the car door after Officer Applegate
opened it upon seeing blood in the backseat. (See id. at 208, 213). Upon
walking up to the scene, Corporal Sutton went to the passenger side of the
car where Ms. Taylor was. (See id. at 208). When asked to identify what the
gunshot victim’s companion handed Lawson, the corporal said he did not know
what it was. (See id. at 212). He could see Officer Applegate still telling
Lawson to calm down because he was so agitated. (See id. at 209). Corporal
Sutton said the first method of dealing with a situation is de-escalation. (See
id. at 210). He said such anger and agitation was concerning in this situation
because of whom Lawson brought in. He said that “[n]ever once did we look
at [] Lawson as the perpetrator.” (Id. at 214). “Only thing we know is there
is a bleeding man on the inside with a gunshot who was not telling us
anything.” (Id. at 215-16). The security guards stood around Lawson’s car
because it had blood evidence and the gunshot victim was dropped off after
riding in it, and their only purpose was to put cones and caution tape around
the vehicle to “make that area sterile” for the Philadelphia Police. (Id. at
217); (see N.T. Trial, 2/04/18 (Volume 4), at 15-16). He testified that the
security guards did not pose a threat to Lawson and that “[h]e was able to
walk away from his car. He was able to have whatever dialogue he had with
-8-
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Ms. Taylor. He was not apprehended where he was restricted. He was allowed
to walk.” (N.T. Trial, 4/03/18 (Volume 3), at 216-17).
Corporal Sutton testified that as Officer Applegate was talking with
Lawson, Ms. Taylor walked up behind him and the officer started focusing on
her. (See N.T. Trial, 4/04/18 (Volume 4), at 16). While Officer Applegate
was talking with Ms. Taylor, Lawson walked unhindered toward the parking lot
with no restraint and, because Corporal Sutton had moved the security
vehicle, the corporal could see Lawson reaching for his waistband as he
reached a grassy area. (See id. at 16-17, 19). Corporal Sutton testified that
if he had just kept walking and had not reached into his pants, he could have
just kept going. (See id. at 19-20). Instead, Lawson reached into his
waistband and upon seeing this, Corporal Sutton yelled, “He has a gun, he
has a gun.” (Id.). He testified that he did this to alert his fellow officers
because, although none of them were armed, they still were responsible for
what occurred on Einstein property. (See id. at 17-18).
At that point, Corporal Sutton jumped out of his vehicle, met Security
Officer Branham and the two men approached Lawson to speak with him.
(See id. at 23). Lawson started trying to run from the security guards, saying
“I ain’t do nothing, I ain’t do nothing,” and “next thing you know he was on
the ground and he fell flat forward covering his mid side[,]” having tripped
over the curb. (Id. at 25; see id. at 23-24). The two officers got on either
side of Lawson on the ground at the top of his shoulders and tried to pull
-9-
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Lawson’s arms from around him as he was trying to get up to prevent him
from reaching for his weapon. (See id. at 27). Corporal Sutton testified that
no officer threw Lawson to the ground, tried to punch or kick him or kneed
him in the back. (See id. at 28, 31-32, 44). He said there was no video of
officers punching Lawson because it did not happen. (See id. at 32). All of
this occurred on the grass. (See id. at 32). At no point did Lawson tell the
officers that he had a firearm in his possession. (See id. at 29).
After the incident, Corporal Sutton and Security Officer Branham placed
Lawson in the Einstein Security vehicle, a jeep. (See id. at 33-34). The
officers stayed on both sides of the jeep because Lawson continued trying to
squirm and move, laying down across the backseat. (See id. at 34). Neither
officer punched him while he was inside the jeep, and Corporal Sutton reached
in and was able to secure the weapon from the squirming Lawson. (See id.
at 35-38). There was no indication that Lawson was injured, gasping for air
or losing his breath at any time. (See id. at 39-41). Corporal Sutton testified
that his only intent that night was to protect everyone on the Einstein campus
and prevent a potential shooting. (See id. at 46-47). Corporal Sutton
testified that Einstein Security did not arrest Lawson and merely held him after
the gun incident until the Philadelphia Police arrived pursuant to Einstein
policy. (See id. at 43-44).
- 10 -
J-A23022-20
4.
The Lawsons presented Attorney Samuel Stretton as a legal expert. He
testified that, theoretically, if a security guard tells an individual he is not free
to leave, that person would be arrested. (See N.T. Trial, 4/03/18 (Volume
3), at 22-23). Furthermore, although initially testifying that a felony must be
committed in an arrestor’s presence to justify a citizen’s arrest, he conceded
that pursuant to Corley, the only case he relied on in his expert report, a
citizen could make an arrest for a felony or misdemeanor breach of the peace.
(See id. at 39, 65).
Einstein provided the testimony of William Birks, who testified as a
security expert. Mr. Birks testified that after reviewing the videotape, it was
his expert opinion, within a reasonable degree of professional certainty, that
the security guards complied with Einstein’s policy and did a good job. (See
N.T. Trial, 4/04/18 (Volume 4), at 124-25). He agreed that the video evidence
was as the guards described it at trial. (See id. at 131, 143).
B.
At the conclusion of testimony, the court charged the jury, in pertinent
part, on justification-defense of others as follows:
The defendant has raised the issue of whether its security
guards acted in defense of another when they restrained the
plaintiff. So this defense is called justification in the law of
Pennsylvania. If the defendant’s actions were justified, you
cannot find them liable for the intentional torts of assault and
battery. The defendant has the burden to prove that the security
guards actually believed that another was in danger of becoming
the victim of unlawful force such that the defendant’s employees
- 11 -
J-A23022-20
needed to use force to defend the other person or persons at the
moment the guards used it and that the guards belief that they
needed to use such force was reasonable in light of all the
circumstances known to them.
Keep this in mind. A person is justified in using force against
someone not only when he or she believes another is in actual
danger of unlawful attack, but also when the defendant mistakenly
but reasonably believes they are. A person is entitled to estimate
the necessity for the use of force he or she employs under the
circumstances as he or she reasonably believes them to be at the
time. In the heat of a conflict a person who sees another attacked
ordinarily has neither time nor composure to evaluate carefully
the danger and make nice judgments about exactly how much
force is needed to protect the other person.
Consider the realities of the situation faced by … defendant
here when you assess whether it has proven that its employees
believed another was actually in danger of unlawful force to the
extent that they needed to use such force in their defense, and
that their belief was reasonable.
Unlawful force means any form of force that is employed
without the consent of the person against whom it is directed
where its use would constitute an offense or actionable tort.
If you find that the Albert Einstein Medical Center’s
personnel were justified in their actions, plaintiffs cannot recover
any damages.
(N.T. Trial, 4/05/16 (Volume 5), at 177-79).
It then went on to charge on what was a lawful citizen’s arrest:
Under Pennsylvania law a private person who makes a
lawful arrest is justified in using any force which he or she believes
to be necessary to effect the arrest and of any force which he
believes to be necessary to defend himself or another from bodily
harm while making the arrest.
And also under Pennsylvania law a layperson, that is
someone who is not a police officer, may arrest another person
only if he or she believes the person being arrested committed a
felony or breach of the peace, and that the felony or breach of the
- 12 -
J-A23022-20
peace was committed in the presence of that person making the
arrest.
An arrest is the taking of another person into custody under
an assertion of legal authority to do so and for the purpose of
bringing that person before a court or otherwise securing the
administration of law. An arrest may be accomplished by any act
that indicates an intention to take that person into custody and
that subjects the person to control of another. An arrest is
improper where it’s made without probable cause.
Probable cause means that the person making the arrest
believed at the time of the arrest, and a reasonable person under
the same circumstances would have also believed, that he or she
had sufficient information of both the facts and the applicable law
to reasonably believe that a crime had been or was being
committed and that the person arrested was guilty of committing
the crime.
If you find that Albert Einstein Medical Center’s personnel
had probable cause to arrest the plaintiff, the plaintiffs cannot
recover damages.
(Id. at 179-81).
On April 5, 2018, the jury began its deliberations and was provided with
a Verdict Sheet, which requested the jury answer “yes” or “no” to the following
pertinent interrogatories:
QUESTION 1:
Do you find that Defendant, Albert Einstein Medical Center,
committed assault against Plaintiff Keenan Lawson?
QUESTION 2:
Do you find that Defendant, Albert Einstein Medical Center,
committed battery against Plaintiff Keenan Lawson?
- 13 -
J-A23022-20
QUESTION 3:
Do you find that Defendant Albert Einstein Medical Center[’s]
actions were justified as the defense of others?
If you Question 3 “Yes,” Plaintiff cannot recover and you
should not answer any further questions. Tell the court crier that
you have reached a verdict.
(Verdict Sheet, at 1-2). The Verdict Sheet did not ask the jury to decide if a
citizen’s arrest had occurred. (See id.).
On April 6, 2018, the jury returned a verdict in favor of Einstein, finding
that Einstein security guards did not commit an assault on Lawson during the
Second Interaction and that, although it committed a battery, it was justifiable
in the defense of others. (See id.).
The Lawsons filed a timely post-sentence motion for a new trial on the
basis that they were prejudiced by the erroneous non-standard jury
instruction on a citizen’s arrest that relied on the language of Corley, supra.
(See Plaintiffs’ Motion for Post-Trial Relief (Motion for a New Trial), 4/11/18).
They maintained that the citizen’s arrest instruction, as stated to the jury,
incorrectly used the word “crime” instead of “breach of the peace,” which
would allow anyone to arrest for any perceived crime, and included marijuana
when it should not have been that broad. They also argued that Corley
contradicted other Pennsylvania law. (See id. at Paragraph 7(g) and (h), and
Paragraph 10). The trial court denied the motion on May 30, 2018. On
October 3, 2018, the Lawsons filed a praecipe to enter judgment. They filed
- 14 -
J-A23022-20
a timely appeal nunc pro tunc on February 19, 2019.2 Both they and the trial
court complied with Rule 1925. See Pa.R.A.P. 1925.
II.
A.
On appeal, the Lawsons contend that the trial court committed
reversible error when it gave a non-standard jury instruction to the jury
regarding when a “citizen’s arrest” was legal. They assert that by informing
them that a citizen’s arrest could be made for a felony or breach of the peace
committed in that person’s presence, “but then failing to explain the definition
of what constituted a ‘breach of the peace,’ the jury was erroneously misled
into believing that possession of marijuana[3] could have constituted breach
____________________________________________
2 The Lawsons filed an appeal of the trial court’s order denying their post-trial
motion that ultimately was quashed on September 7, 2018, because judgment
had not been entered. After filing their praecipe to enter judgment on October
3, 2018, the Lawsons filed a Petition to Appeal Nunc Pro Tunc in this Court on
October 9, 2018, which was unnecessary since it was filed within the 30-day
appeal period. This Court denied the motion on November 9, 2018, beyond
the 30-day appeal period without prejudice to the Lawsons seeking the relief
in the trial court. On November 19, 2018, the Lawsons filed a Petition to
Appeal Nunc Pro Tunc that the trial court granted on February 11, 2019,
finding the delay in filing an appeal was due to a breakdown in the court’s
operations and non-negligent happenstance.
3 The Lawsons claim the charge was in error because it “include[d] marijuana
when it should not have been that broad,” since marijuana possession is not
a breach of the peace justifying a citizen’s arrest. (The Lawsons’ Brief, at 11)
(emphasis omitted); (see id. at 15).
However, the Lawsons’ argument is belied by the record because marijuana
possession is not mentioned in the instruction provided to the jury. Although
- 15 -
J-A23022-20
of the peace, which absolutely runs contrary to the law of this
Commonwealth.” (The Lawsons’ Brief, at 4) (emphases omitted).
The Lawsons maintain that an illegal citizen’s arrest occurred during the
First Interaction, i.e., when Einstein security guards asked Lawson to get out
of his car and secured it until the police arrived. (See id. at 5, 9, 11).4 They
argued that if the original detention was illegal, as testified by the Lawsons’
legal expert witness, the events subsequent to that, including the battery and
____________________________________________
a reference to marijuana possession was in a draft version of the jury
instruction, it was removed from the final version, following the Lawsons’
objection. (See N.T. Trial, 4/05/18, at 39); (see also Trial Ct. Op., 4/11/19,
at 7). Therefore, any challenge to the jury instruction based on the inclusion
of marijuana possession as a breach of the peace is simply not supported by
even a cursory reading of the record.
4 The Lawsons assume that based on the instruction, the jury thought a legal
citizen’s arrest had occurred during the First Interaction. Not only is the
Lawsons’ assumption speculative, it is just as possible that the jury did not
think there was a citizen’s arrest. The record reflects that Lawson testified
that upon arriving at Einstein and dropping off the gunshot victim, he
immediately was asked for his keys and to exit the vehicle, which he did,
walking away to make a phone call. Einstein presented testimony that,
although the Lawsons’ car was seized in order to preserve a crime scene due
to the presence of blood and the fact that he had just dropped off a gunshot
victim, he was not a suspect in the shooting and was free to leave. The officers
did not testify that they were arresting him for possession of marijuana or
anything else since, at the time of the First Interaction, they did not even
know he possessed them. The jury was free to believe all, some or none of
this testimony and find that Lawson was not under arrest. See Allegheny
Energy Supply Co., LLC v. Wolf Run Min. Co.,
53 A.3d 53
, 64 (Pa. Super.
2012), appeal denied,
69 A.3d 599
(Pa. 2013) (affirming because “fact finder,
was free to believe all, part of none of the evidence presented[.]”).
- 16 -
J-A23022-20
any perceived "justification" for the battery, would not have otherwise
occurred but for the illegal detention.
In response, Einstein contends that a valid citizen’s arrest occurred
during the Second Interaction when the guards jumped on Lawson when he
went into his waistband to reach for a firearm. Einstein contends that the jury
charge was proper as accurately reflecting the law of the Commonwealth and,
even if it was not proper, it was harmless error.
We disagree with the Lawsons for the following reasons.
B.
Addressing those positions is difficult because they do not really address
what was necessary for the jury to find no liability on Einstein’s part. As stated
previously, a citizen’s arrest was introduced, not as a claim or defense, but as
an expert opinion that an illegal arrest occurred during the First Interaction
for which no claim was made. Einstein’s position that there was a valid
citizen’s arrest during the Second Interaction, where the purported injuries
occurred, was not raised as a defense to that interaction. It is not surprising,
then, that since no damages are claimed as a result of the First Interaction
(where the Lawsons claim the purported illegal citizen’s arrest occurred), and
Einstein did not raise citizen’s arrest as a defense to the Second Interaction,
that the Lawsons’ argument that the charge of citizen’s arrest, i.e., false
imprisonment or unlawful detention, is irrelevant as to whether they made out
their case that there was an unlawful assault by Einstein security guards in
- 17 -
J-A23022-20
the Second Interaction. Moreover, even if a citizen’s arrest is not totally
irrelevant, the Lawsons have failed to make out their claim for the following
reasons.
First, even if properly pled, the only relevance of a citizen’s arrest would
have been if there were a claim of false imprisonment or illegal detention to
which a citizen’s arrest would have been a valid defense. The Lawsons brought
no such claims – only that Lawson was illegally assaulted. In answering that
question, the jury found that although Einstein security guards committed a
battery on Lawson, they were acting in justified defense of others when they
did so and, therefore, Einstein was not liable. Once that determination was
made, whether there was a citizen’s arrest was irrelevant, even if it had been
pled as a defense to a claim of false imprisonment or illegal detention. In fact,
the jury interrogatories asked nothing about a citizen’s arrest. The jury made
no finding about a citizen’s arrest.
Second, the Lawsons’ argument that “but for” the purported illegal
citizen’s arrest that they contend occurred during the First Interaction - when
he was asked him to get out of the car, he would not have been assaulted in
the Second Interaction, is nonsensical. It is the same as saying that if he had
not picked up the couple and gone to the hospital, he would not have been
assaulted. In other words, even assuming asking him to get out his car and
securing the vehicle was illegal, there is no legal cause and effect that the
First Interaction resulted in the Second Interaction in which he was assaulted.
- 18 -
J-A23022-20
Third, even if a citizen’s arrest is somehow relevant, it was not made
out during the First Interaction. For there to be a citizen’s arrest, there has
to be an arrest – someone has to be taken into custody. Only when a person
is taken into custody do we then go on to determine whether the conduct
involved was a felony or breach of the peace. In this case, the testimony
supported that Lawson was never taken into custody. Corporal Sutton stated
that Lawson walked unhindered toward the parking lot with no restraint, and
that if he had just kept walking and had not reached into his pants where
there was a gun, he could have just kept going. In other words, they never
made a citizen’s arrest because they never intended or took him into custody
during the First Interaction. It was the Second Interaction that the jury found
constituted justifiable battery on the part of the Einstein Security guards.
Fourth, even if there was any evidence that Lawson was taken into
custody, the Lawsons’ argument that the trial court’s failure to “define[] what
constituted a breach of the peace” was reversible error that was “compounded
by the probable cause charge which, together, could have truly confused the
jury[,]” lacks merit. (The Lawsons’ Brief, at 17).5 They provide no evidence
____________________________________________
5 Even if this argument were not irrelevant, it would be waived for the
Lawsons’ failure to provide any law to support this claim to identify where in
the record they preserved this issue in the trial court and for not raising it in
their post-trial motion. (See the Lawsons’ Brief, at 17); see also Pa.R.A.P.
302(a); Pa.R.A.P. 2119(a)-(b), (e); Board of Supervisors of Williston
Township v. Main Line Gardens, Inc.,
155 A.3d 39
, 44 (Pa. 2017) (“If an
issue has not been raised in a post-trial motion, it is waived for appeal
- 19 -
J-A23022-20
that the trial court’s failure to define breach of the peace confused the jury,
or that the probable cause instruction caused them to be perplexed about a
citizen’s arrest in any way. In fact, the record reflects that the jury asked
three questions about the jury charge, so they knew to ask questions if they
did not understand, and none of their questions involved breach of the peace.
(See N.T. Trial, 4/05/18, at 193 (jury question asking for definition of
assault); N.T. Trial, 4/06/18, at 3 (jury questions regarding how intent is
defined for assault and battery); N.T. Trial, 4/06/18, at 14-15 (jury question
requesting written copy of the assault and battery intent definitions)).
Moreover, contrary to the Lawsons’ argument, when reading the two
instructions together, the “crime” referred to in the probable cause instruction
logically was the “felony or breach of the peace” identified in the immediately
preceding citizen’s arrest charge. The Lawsons did not establish that the
charge as a whole was inadequate, unclear, misleading or confusing to justify
a new trial merely because the trial court did not include a specific definition
for breach of peace or because the instruction, when read with the probable
cause charge, was allegedly confusing. See Smith v. Morrison,
47 A.3d 131
,
____________________________________________
purposes.”) (citation omitted); see also Newman Dev. Group of
Pottstown, LLC v. Genuardi’s Family Market, Inc.,
98 A.3d 645
, 648 n.16
(Pa. Super. 2014), appeal denied,
117 A.3d 1281
(Pa. 2015) (“A new
argument cannot be raised in support of an issue on appeal if it was not first
presented before the trial court.”) (citation omitted).
- 20 -
J-A23022-20
134-35 (Pa. Super. 2012), appeal denied,
57 A.3d 71
(Pa. 2012) (citation
omitted).
Finally, even if the citizen’s arrest charge was somehow relevant,
misleading or erroneous (which we find it was not), it would be harmless error.
(N.T. Trial, 4/04/18, at 179-81); see Commonwealth v. Allshouse,
36 A.3d 163
, 182 (Pa. 2012), cert. denied,
569 U.S. 972
(2013). In fact, whether the
instruction could have resulted in the jury panel finding that a citizen’s arrest
occurred and, thus, affected its justified battery verdict, is merely a
hypothetical question that we are precluded from reviewing where the jury did
not actually make such a finding. See Crystal Lake Camps v. Alford,
923 A.2d 482
, 489 (Pa. Super. 2007) (“A court should not render advisory
decisions on hypothetical facts.”).
Accordingly, for all these reasons, even if properly before this Court, the
Lawsons’ arguments regarding the citizen’s arrest jury instruction would lack
merit. See Morrison,
supra at 134-35
. The Lawsons are due no relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/20
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EAST COAST SUMMIT POINTE, LLC : IN THE SUPERIOR COURT OF
AND MORGAN PROPERTIES : PENNSYLVANIA
MANAGEMENT COMPANY, LLC :
:
Appellants :
:
:
v. :
: No. 706 MDA 2020
:
ASPEN AMERICAN INSURANCE :
COMPANY AND TSE, INC. :
Appeal from the Order Entered April 22, 2020
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2016-CV-1783
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2020
Appellants, East Coast Summit Pointe, LLC, and Morgan Properties
Management Company, LLC, appeal from the April 22, 2020 order granting
the motion for summary judgment filed by Appellees, Aspen American
Insurance Company and TSE, Inc., and entering judgment in Appellees’ favor.
We affirm.
Appellants own an apartment complex in Lackawanna County,
Pennsylvania, and sought bids for the construction of a replacement gas line,
gas meter, and water meter pit. TSE was one of the bidders and Aspen
American issued the surety bond in connection with TSE’s bid. When TSE did
not enter into the contract with Appellants, because TSE had submitted a
revised bid that Appellants did not appear to consider, Appellants filed a
J-S44003-20
complaint, essentially alleging breach of contract and seeking damages of
more than $172,000. Subsequently, Appellees filed a contested motion for
summary judgment, which was granted by the trial court. Thereafter,
Appellants filed the present appeal and raise three issues for our review:
1. Whether the trial court erred as a matter of law in holding that
[Appellee] TSE, Inc.[’s] revising its bid revoked its original bid.
2. Whether the trial court erred as a matter of law in holding that no
contract existed between the parties.
3. Whether the trial court erred as a matter of law in finding issues of fact
without any support in the record.
Appellants’ brief at 7.
In reviewing this appeal, we are guided by the following:
Entry of summary judgment is governed by Rule 1035.2 of the
Rules of Civil Procedure:
After the relevant pleadings are closed, but within such time
as not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material
fact as to a necessary element of the cause of action
or defense which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery relevant to the
motion, including the production of expert reports, an
adverse party who will bear the burden of proof at trial
has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2. In addition:
Our standard of review of an appeal from an order granting
summary judgment is well settled: Summary judgment may
be granted only in the clearest of cases where the record
shows that there are no genuine issues of material fact and
-2-
J-S44003-20
also demonstrates that the moving party is entitled to
judgment as a matter of law. Whether there is a genuine
issue of material fact is a question of law, and therefore our
standard of review is de novo and our scope of review is
plenary. When reviewing a grant of summary judgment, we
must examine the record in a light most favorable to the
non-moving party.
Reason v. Kathryn’s Korner Thrift Shop,
169 A.3d 96
, 100 (Pa. Super.
2017) (internal citation omitted).
We have reviewed the certified record, the briefs of the parties, the
applicable law, and the thorough memorandum authored by the Honorable
James A. Gibbons of the Court of Common Pleas of Lackawanna County, dated
April 22, 2020. Memorandum and Order, 4/22/2020. We conclude that Judge
Gibbons’ well-reasoned memorandum accurately disposes of the three issues
presented by Appellants on appeal and we discern no abuse of discretion or
error of law. Accordingly, we adopt Judge Gibbons’ memorandum as our own
for purposes of appellate review and affirm the order granting Appellees’
motion for summary judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2020
-3-
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYON STOKES :
:
Appellant : No. 306 EDA 2020
Appeal from the PCRA Order Entered November 4, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0006083-2009
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 02, 2020
Tyon Stokes appeals from the order that dismissed without a hearing
his petition filed pursuant to the Post Conviction Relief Act (“PCRA”). We
vacate the order and remand for the appointment of counsel and a hearing.
Given our disposition, we offer only a brief recitation of the history of
the case. In 2012, Appellant was sentenced to life imprisonment after a jury
convicted him of the 2003 murder of Phillip “Diesel” Sheridan in a dispute over
drug territory. Neither his direct appeal nor his first PCRA petition afforded
him any relief. See Commonwealth v. Stokes,
100 A.3d 296
(Pa.Super.
2014) (unpublished memorandum), appeal denied,
99 A.3d 925
(Pa. 2014).
See also Commonwealth v. Stokes,
175 A.3d 1062
(Pa.Super. 2017)
(unpublished memorandum).
J-S45008-20
Appellant filed the facially-untimely1 pro se PCRA petition at issue in the
instant appeal on March 18, 2019. Therein, he claimed that on December 28,
2018, he learned through a mutual acquaintance that Darrian Deans had
witnessed the killing of Diesel and was certain that Appellant was not the
murderer. See PCRA Petition, 3/18/19, at 8. He attached the affidavit of Mr.
Deans, as well as that of the mutual acquaintance, and asserted that his
testimony supported an after-discovered evidence claim. Id. at 3, 7, 12
(citing 42 Pa.C.S. § 9543(a)(2)). See also id. at Exhibits A and B. Appellant
further alleged that the petition was subject to the newly-discovered-facts
timeliness exception because the existence of Mr. Deans and his knowledge
of the incident was previously unknown to Appellant and could not have been
discovered earlier with the exercise of due diligence. Id. at 2-3, 7-8 (citing
42 Pa.C.S. § 9545(b)(1)(ii)).
The Commonwealth filed a response to the petition indicating that it did
not object to the PCRA court granting a hearing on the issue. Commonwealth’s
Letter Response, 10/2/19. However, the PCRA court on October 4, 2019,
issued notice of its intent to dismiss Appellant’s petition without a hearing
pursuant to Pa.R.Crim.P. 907 because it was untimely and no timeliness
exception applied. See Notice of Intent to Dismiss, 10/4/19, at 1. Appellant
____________________________________________
1 Generally, a petition for relief under the PCRA, including a second or
subsequent petition, must be filed within one year of the date the judgment
of sentence is final. See 42 Pa.C.S. § 9545(b)(1).
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filed a timely response reiterating that he had invoked § 9545(b)(1)(ii), and,
noting that the PCRA court had not explained the reason for its conclusion that
the timeliness exception had not been satisfied, renewed his request for an
evidentiary hearing. See Objection to Notice of Intent to Dismiss, 10/16/19,
at 2-3. Nonetheless, the PCRA court dismissed Appellant’s petition without a
hearing by order of November 4, 2019.
Appellant filed a timely notice of appeal, and both Appellant and the
PCRA court complied with Pa.R.A.P. 1925. In particular, Appellant maintained
that the PCRA court erred in dismissing his petition without a hearing given
his allegations concerning his discovery of the new evidence provided by Mr.
Deans. See Pa.R.A.P. 1925(b) Statement, 1/17/20. He reiterates his
arguments in his brief, contending that he sufficiently pled and offered to
prove the newly-discovered facts timeliness exception.2 See Appellant’s brief
at 18-19.
The PCRA court, in its Rule 1925 opinion, agreed with Appellant. The
court explained that it had errantly applied a prior version of the § 9545(b)
which required that a claim based upon a newly-discovered fact be filed within
____________________________________________
2 Appellant also argues the merits of his substantive after-discovered evidence
claim. See Appellant’s brief at 20-26. However, the substantive claim is
distinct from the timeliness exception. Appellant must first satisfy his burden
of proving that he has satisfied all the requirements of the timeliness exception
before this Court or any court has jurisdiction to entertain the merits of the
substantive claim. See Commonwealth v. Brown,
111 A.3d 171
, 176 (Pa.
Super. 2015) (discussing the distinct requirements of the timeliness exception
and the substantive after-discovered evidence claim).
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sixty days of the date that the claim could have been presented, rather than
the version applicable beginning on December 24, 2018, which changed the
deadline from sixty days to one year. See PCRA Court Opinion, 2/28/20, at
5. Accordingly, the PCRA court acknowledged that it improperly dismissed the
petition, and requests that we remand for Mr. Deans to testify at a hearing. 3
Id.
We agree with Appellant and the PCRA court that Appellant has pled and
offered to prove sufficient facts to warrant a hearing to determine whether the
facts upon which his claim was based were previously unknown to him and
could not have been discovered earlier through the exercise of due diligence,
____________________________________________
3 For its part, the Commonwealth does not go so far as to concede that a
hearing is necessary, although its response to the petition affirmatively
indicated its lack of objection to a hearing. Rather, it merely expresses a lack
of opposition to a remand, and opines that:
on remand, the lower court should determine whether defendant’s
proffered evidence otherwise satisfied all the requirements to
establish the exception for discovery of new facts that could not
have been discovered earlier with the exercise of due diligence.
It will simply need to make that determination while applying the
applicable one-year rather than the superseded sixty-day period.
Commonwealth’s brief at 8 n.1. Since Appellant has pled that neither he nor
the Commonwealth had any knowledge of the fact that Mr. Deans witnessed
the shooting, let alone that he could describe the murderer’s appearance and
affirmatively represent that it was not Appellant, we agree with the PCRA court
that a hearing is warranted to ascertain the truth of Appellant’s assertions. If
the PCRA court concludes after hearing from the witnesses that Appellant has
satisfied the timeliness exception, it may then proceed to take evidence upon
substantive after-discovered evidence claim and decide whether it merits
relief.
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and whether Appellant filed his petition within one year of when he could have
presented the claim. Accord Commonwealth v. Shiloh,
170 A.3d 553
, 560
(Pa.Super. 2017) (remanding for a hearing to determine the veracity of the
allegations concerning the petitioner’s discovery of new facts and whether the
petitioner could have discovered them sooner with the exercise of due
diligence). Therefore, we vacate the order dismissing Appellant’s petition as
untimely without a hearing, and remand for the PCRA court for a hearing on
the timeliness of Appellant’s petition and, if warranted by the PCRA court’s
timeliness findings, on the substance of Appellant’s after-discovered evidence
claim.
Moreover, the Pennsylvania Rules of Criminal Procedure provide that
when an unrepresented, indigent establishes entitlement to a hearing, “the
judge shall appoint counsel to represent the defendant.” Pa.R.Crim.P. 904(D).
Upon remand, the PCRA court shall ascertain whether Appellant’s financial
circumstances entitle him to appointed counsel to represent him at the hearing
and related proceedings.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/20
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4,638,814 | 2020-12-02 17:12:18.06979+00 | null | http://www.pacourts.us/assets/opinions/Superior/out/J-S44005-20m - 104621402121115247.pdf | J-S44005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW KANE PERKINS :
:
Appellant : No. 442 MDA 2020
Appeal from the Judgment of Sentence Entered February 22, 2013
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003892-2011
BEFORE: BENDER, P.J.E., NICHOLS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 02, 2020
Appellant, Matthew Kane Perkins, appeals nunc pro tunc from the
aggregate judgment of sentence of 20 to 40 years’ incarceration, followed by
20 years’ probation, imposed after a jury convicted him of two counts of third-
degree murder, three counts of aggravated assault, possession of a firearm
by a person prohibited, possession of a firearm by a minor, possessing an
instrument of crime, and recklessly endangering another person.1 On appeal,
Appellant challenges the sufficiency and weight of the evidence to sustain his
convictions, as well as the discretionary aspects of his sentence. After careful
review, we affirm.
____________________________________________
1 18 Pa.C.S. §§ 2502(c), 2702(a)(1), 6105(a)(1), 6110.1(a), 907(a), and
2705, respectively.
J-S44005-20
The trial court summarized the facts underlying Appellant’s convictions,
as follows:
The incident which gave rise to Appellant’s conviction[s]
occurred sometime between the late night of July 29, 2011[,] to
the early morning of July 30, 2011. On that date, a party was
being held in a garage that was located at Green and 11th Street,
Reading, Berks County. See Notes of Testimony, Jury Trial,
1/30/13, 1/31/13, 2/1/13, at 35. (hereinafter N.T.[] Jury Trial).
Between twenty-five to fifty Hispanic people were present at the
party, [as well as] Appellant, who is African American. At some
point, the party ended for an unknown reason, and people started
to leave. Id. at 37. However, after people started to leave the
party, a confrontation occurred between a group that included
some people who were at the party, including Juan Carlos
Pimental, Ceasor Rivera,[2] and Tyre Little, and a group of four or
five African Americans, including Appellant, near an unnamed
alleyway between Heckmans Court and Mulberry Street. Id. at
219, 256-57. A gun was visible [i]n Appellant’s pants. Id. at 221.
Appellant stated that he did not want any trouble, and Rivera
approached Appellant and reached for Appellant’s gun. Id. at
214, 218. At this point, the other African Americans started to
attack Rivera. Id. at 219. Rivera was able to break free and
continued to fight[,] aided by Pimental and a number of other
people. Id. at 222, 258. At some point, Appellant was knocked
down, and when he stood up, he pulled out the gun he was
carrying and told everyone not to move while waving the gun in
front of him. Id. at 223. He then tried to leave through the
alleyway towards Mulberry Street. Id. at 224. He was followed
by those who were involved in the fight, including Pimental and
Rivera. Id. at 237.
In the alleyway, Appellant fired several shots. Id. at 43-44.
One shot struck Pimental in the neck. Id. at 126. Appellant then
started to run towards Mulberry Street. Rivera and about five
other people pursued Appellant. While fleeing, Appellant, without
looking back, continued to fire several shots behind him. Id. at
45-47. Five shots struck Rivera, one of which struck him in the
chest. Id. at 305. Little, who attempted to flee after shots were
fired, was also shot in the leg. Id. at 262-63[]. During this
____________________________________________
2 We note that the transcript uses the spelling “Cesar” rather than “Ceasor.”
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confrontation, no one else present had a gun, however, a knife
blade and a knife handle were later located in the alleyway. Id.
at 264, 391-92.
Rivera died that night as a result of the wound to his chest.
Id. at 308. Pimental was transported to Reading Hospital and was
intubated. Id. at 126. Until the time of his death six months
later, Pimental was on a ventilator and quadriplegic. Id.
Pimental’s cause of death was due to the injuries he sustained.
Id. at 130. Little had trouble walking for a few days, but fully
recovered and has no present medical issues. Id. at 263.
A short time after the incident, Appellant called and spoke
to Brina Mayton over the phone. Mayton knew Appellant because
her sister was in a relationship with one of Appellant’s brothers.
Id. at 324. Mayton asked Appellant about what had happened
that night, and Appellant stated that one of his boys was in trouble
and that he went to protect him then ran. Id. at 327. Appellant
admitted over the phone that he shot someone, but said the
person had pulled out a knife. Id. at 334. After the incident,
Appellant fled to Florida, where he was later arrested and
extradited to Pennsylvania.
Trial Court Opinion (TCO), 5/21/20, at 3-4.
Based on this evidence, the jury convicted Appellant of the above-stated
charges. On February 21, 2013, he was sentenced to an aggregate term of
20 to 40 years’ incarceration, followed by 20 years’ probation. He did not file
a post-sentence motion or a direct appeal. However, on March 6, 2014,
Appellant filed a timely petition under the Post Conviction Relief Act (PCRA),
42 Pa.C.S. §§ 9541-9546, seeking the restoration of his post-sentence motion
and appeal rights. After delays caused by changes in Appellant’s counsel, the
court granted Appellant’s petition on November 18, 2019. Appellant filed a
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post-sentence motion on December 2, 2019.3 After a hearing, the court
denied Appellant’s post-sentence motion on February 4, 2020. He filed a nunc
pro tunc notice of appeal on March 4, 2020,4 and he complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on May 21,
2020.
Herein, Appellant presents three issues for our review:
____________________________________________
3 Appellant’s motion was not filed within 10 days of the court’s order granting
his petition. In the motion, Appellant’s counsel explained that it was untimely
because he had not received the court’s November 18, 2019 order until Friday,
November 29, 2019, which was a court holiday, making the next possible filing
date Monday, December 2, 2019. See Nunc Pro Tunc Post-Sentence Motion,
12/2/19, at 1 (unnumbered); see also 1 Pa.C.S. § 1908 (“When any period
of time is referred to in any statute, such period in all cases … shall be so
computed as to exclude the first and include the last day of such period.
Whenever the last day of any such period shall fall on a Saturday or Sunday,
or on any day made a legal holiday by the laws of this Commonwealth or of
the United States, such day shall be omitted from the computation.”).
Appellant’s counsel expressly requested that the “[c]ourt grant [Appellant] a
[n]unc [p]ro [t]unc filing on []his post-sentence motion….” Nunc Pro Tunc
Post-Sentence Motion at 2 (unnumbered). On December 5, 2019, the court
issued an order scheduling a hearing for February 4, 2020, thus expressly
permitting the filing of Appellant’s post-sentence motion nunc pro tunc and
tolling the 30-day appeal period. See Commonwealth v. Capaldi,
112 A.3d 1242
, 1244 (Pa. Super. 2015) (stating that a defendant’s untimely post-
sentence motion may toll the appeal period where he explains the
untimeliness and requests that the trial court accept his motion nunc pro tunc,
and the court expressly permits the filing of the motion nunc pro tunc).
4We observe that Appellant’s notice of appeal incorrectly stated that he was
appealing from the February 4, 2020 order denying his post-sentence motion.
Because an appeal properly lies from the judgment of sentence, we have
corrected the caption accordingly. See Commonwealth v. Shamberger,
788 A.2d 408
, 410 n.2 (Pa. Super 2001) (en banc).
-4-
J-S44005-20
1. Whether the evidence was insufficient to find [Appellant] guilty
of murder of the third degree, aggravated assault, possession of
a firearm by a minor, and possession of instruments of crime?
2. Whether the verdicts of guilty of murder of the third degree[,]
aggravated assault, possession of a firearm by a minor, and
possession of instruments of crime were against the weight of the
evidence?
3. Did the trial court abuse its discretion in imposing sentence, in
light of the imposition of a maximum sentence, as it is manifestly
excessive so as to inflict to[o] severe a punishment on [Appellant]
and was not warranted under the circumstances of the within case
or the factors enumerated in the Sentencing Code[,] which did not
militate in favor of total confinement of the length imposed in this
case[,] by failing to give proper consideration [to] any
rehabilitative incentive on behalf of [Appellant] and the mitigating
factors presented at sentencing[,] and focusing only on the
punitive needs of the Commonwealth to the exclusion of all
others[?]
Appellant’s Brief at 4 (unnecessary capitalization omitted).
Appellant first challenges the sufficiency of the evidence to sustain his
convictions.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno,
14 A.3d 133
(Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell,
988 A.2d 141
(Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno,
supra at 136
.
Commonwealth v. Koch,
39 A.3d 996
, 1001 (Pa. Super. 2011).
Appellant first contends, generally, that none of his convictions can
stand because “the Commonwealth had no real, direct evidence that
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[Appellant] was the shooter. None of the eyewitnesses to the crimes that the
Commonwealth called to the witness stand ever identified [Appellant] as the
person who shot a gun.” Appellant’s Brief at 14-15.
Appellant’s argument is belied by the record. For instance, Daniel
DeLaRosa testified that he was at the party on the night of July 30, 2011, and
he witnessed the shooting afterwards from a distance of approximately 30
feet. N.T. Jury Trial at 35-36, 40. He stated that he was able to see the
shooter, whom he recognized from school. DeLaRosa then identified Appellant
in court as the person he saw shooting that night. Id. at 44. Additionally,
Brina Mayton testified that Appellant admitted to her that he had shot
someone on the night of the party. Id. at 327. This evidence was sufficient
for the jury to find, beyond a reasonable doubt, that Appellant was the
individual that shot the victims in this case.
Appellant also challenges the sufficiency of the evidence to sustain his
conviction of third-degree murder, claiming that the Commonwealth failed to
prove that he acted with malice. According to Appellant, the evidence
demonstrated that he fired the shots to stop the fight, and he did so as he ran
away from the crowd that was “surg[ing] after him.” Appellant’s Brief at 17.
Appellant also maintains that the evidence did not prove that he intentionally
shot Little so as to support his conviction of aggravated assault.
Appellant’s arguments are unconvincing. Our Supreme Court has
explained:
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J-S44005-20
Pennsylvania retains the common law definition of murder, which
is a killing conducted “with malice aforethought.”
Commonwealth v. Santos, …
876 A.2d 360
, 363 ([Pa.] 2005);
Commonwealth v. Thomas, …
594 A.2d 300
, 301 ([Pa.] 1991).
Section 2502 of the Pennsylvania Crimes Code categorizes murder
into degrees. See generally 18 Pa.C.S. § 2502(a)-(c). Third-
degree murder is defined as “all other kinds of murder,” i.e., those
committed with malice that are not intentional (first-degree) or
committed during the perpetration of a felony (second-degree).
Id. The pertinent provision of the aggravated assault statute
requires proof that the defendant “attempt[ed] to cause serious
bodily injury to another, or cause[d] such injury intentionally,
knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).
… [T]he mens rea required for a conviction of aggravated assault,
like third-degree murder, is malice; only the result of the crimes
differ. See Commonwealth v. O'Hanlon, …
653 A.2d 616
, 618
([Pa.] 1995) (“Aggravated assault is, indeed, the functional
equivalent of a murder in which, for some reason, death fails to
occur.”)….
The overarching definition of malice was first provided by this
Court in Commonwealth v. Drum,
58 Pa. 9
(1868):
[I]t is not malice in its ordinary understanding alone, a
particular ill-will, a spite or a grudge. Malice is a legal term,
implying much more. It comprehends not only a particular
ill-will, but every case where there is wickedness of
disposition, hardness of heart, cruelty, recklessness of
consequences, and a mind regardless of social duty,
although a particular person may not be intended to be
injured.
Id. at 15
. This definition has been continuously repeated and
relied upon in decisions by this Court, see, e.g., Commonwealth
v. Fisher, …
80 A.3d 1186
, 1191 ([Pa.] 2013); Santos, 876 A.2d
at 363; Thomas, 594 A.2d at 301; Commonwealth v. McGuire,
…
409 A.2d 313
, 316 ([Pa.] 1979), and is incorporated into the
Pennsylvania Suggested Standard Criminal Jury Instructions for
third-degree murder. Pa. SSJI (Crim) § 15.2502C (2016).
While Drum’s definition of malice lacks finite parameters, for the
purpose of third-degree murder or aggravated assault, “our courts
have consistently held that malice is present under circumstances
where a defendant did not have an intent to kill, but nevertheless
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J-S44005-20
displayed a conscious disregard for ‘an unjustified and extremely
high risk that his actions might cause death or serious bodily
harm.’” Santos, 876 A.2d at 364 (quoting Commonwealth v.
Young, …
431 A.2d 230
, 232 ([Pa.] 1981)).
Commonwealth v. Packer,
168 A.3d 161
, 168 (Pa. 2017).
In this case, the trial court relied on Packer to conclude that malice was
established, reasoning as follows:
In this case, the evidence examined in a light most favorable to
the Commonwealth reveals that Appellant fired multiple shots into
a crowd of people while attempting to flee. One of these struck
Pimental in the neck and another struck Rivera in the chest,
resulting in their deaths. Our Supreme Court has stated that the
reckless firing of a gun into a crowd of people is evidence that the
shooter acted with malice. [Packer, 168 A.3d at 169]. Therefore,
there was sufficient evidence for the jury to conclude that
Appellant acted with malice and to find Appellant guilty of third[-
]degree murder.
TCO at 7.
We agree with the trial court that Appellant’s act of firing a gun into the
crowd of people in the alleyway was sufficient to demonstrate the malice
element of third-degree murder. See Packer, 168 A.3d at 169 (“The
quintessential example of the level of recklessness required to constitute
malice is a defendant who shoots a gun into a crowd. If a man fires a gun
into a crowd and kills another it is murder, because the fact of the reckless
shooting of a gun into a crowd is malice in law. That wicked and depraved
disposition and that recklessness and disregard of human life is malice.”)
(citation and internal quotation marks omitted). The fact that the crowd was
fighting, and that several people were chasing Appellant, does not change our
decision. Initially, Appellant fails to point to any evidence indicating that he
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J-S44005-20
could not have retreated when the fight first started. Once Appellant did begin
to flee, there is no evidence that he could not have continued to run and made
it to safety without firing his weapon. Instead, Appellant chose to shoot “with
his hand behind” him as he ran, and was “looking over his right shoulder”
towards Cesar as he fired. N.T. Jury Trial at 45, 46. Notably, multiple
eyewitnesses testified that no one, including Cesar, had a gun. See id. at 48-
49, 50, 52, 221, 264. We agree with the trial court that this evidence, viewed
in the light most favorable to the Commonwealth, was sufficient for the jury
to find that Appellant acted with malice in shooting and killing Pimental and
Cesar, and injuring Little. Therefore, his convictions for third-degree murder
and aggravated assault must stand.
In Appellant’s next issue, he challenges the weight of the evidence to
support the jury’s verdict.
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser,
18 A.3d 1128
, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
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J-S44005-20
Presently, Appellant solely argues that the verdict was against the
weight of the evidence because “it was based on speculation as to who actually
fired [the] shots and who actually possessed the gun.” Appellant’s Brief at
18. For the reasons set forth in our discussion of Appellant’s sufficiency claim,
we disagree. Several witnesses identified Appellant as the shooter, and
testified that he was the only individual who had a gun that night. Accordingly,
his cursory weight-of-the-evidence argument is meritless.
In Appellant’s third and final issue, he challenges the discretionary
aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra,
752 A.2d 910
, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must invoke
this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans,
901 A.2d 528
, 533 (Pa. Super. 2006),
appeal denied,
589 Pa. 727
,
909 A.2d 303
(2006). Objections to
the discretionary aspects of a sentence are generally waived if
they are not raised at the sentencing hearing or in a motion to
modify the sentence imposed. Commonwealth v. Mann,
820 A.2d 788
, 794 (Pa. Super. 2003), appeal denied,
574 Pa. 759
,
831 A.2d 599
(2003).
The determination of what constitutes a substantial question must
be evaluated on a case-by-case basis. Commonwealth v. Paul,
925 A.2d 825
, 828 (Pa. Super. 2007). A substantial question
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J-S44005-20
exists “only when the appellant advances a colorable argument
that the sentencing judge’s actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.”
Sierra, supra at 912–13.
Commonwealth v. Griffin,
65 A.3d 932
, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury,
992 A.2d 162
, 170 (Pa. Super. 2010)).
In this case, Appellant timely filed his nunc pro tunc appeal, and he has
included a Rule 2119(f) statement in his appellate brief. Therein, he claims
that the court’s sentence of 20 to 40 years’ imprisonment, followed by 20
years’ probation, is “manifestly excessive, clearly unreasonable, and contrary
to the fundamental norms underlying the Sentencing Code.” Appellant’s Brief
at 10. Specifically, he contends that the court only gave “limited consideration
[to] the statutory factors” set forth in 42 Pa.C.S. § 9721(b), and it “failed to
offer reasons for its sentence that comport with the considerations required
under [s]ection 9721(b).” Id. at 11. We conclude that Appellant preserved
these claims in his post-sentence motion, and that they present substantial
questions for our review. See Commonwealth v. Derry,
150 A.3d 987
, 992
(Pa. Super. 2016) (finding that a claim that “the trial court failed to
consider relevant sentencing criteria, including the protection of the
public, the gravity of the underlying offense and the rehabilitative needs
of Appellant, as 42 Pa.C.S.[] § 9721(b) requires[,] presents a substantial
question for our review in typical cases”) (internal quotation marks and
citations omitted); Commonwealth v. Simpson,
829 A.2d 334
, 338 (Pa.
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J-S44005-20
Super. 2003) (declaring that a claim that the sentencing court failed to state
sufficient reasons for the sentence imposed raises a substantial question).
However, in the argument section of Appellant’s brief, he only baldly
remarks that the court “failed to give proper consideration [to] any
rehabilitative incentive on behalf of [Appellant,]” and offers no developed
argument regarding this claim. Appellant’s Brief at 19. He also provides no
discussion of his assertion that the court did not properly consider the other
section 9721(b) factors. Instead, Appellant focuses his argument on
contending that the court’s sentence is excessive in light of mitigating factors,
such as his young age, his lack of family support, and the circumstances of
his case, which indicate he was just “a fearful child who made a rash decision”
after a fight broke out and individuals attacked his friends. Id. at 20. Based
on these mitigating factors, Appellant insists that “[h]is sentence should have
been in the lower end of the sentencing guidelines.” Id.
Appellant did not argue that mitigating factors warranted a lesser
sentence in his post-sentence motion, or in his Rule 2119(f) statement.
Therefore, he has waived this claim. See Commonwealth v. Griffin,
65 A.3d 932
, 936 (Pa. Super. 2013) (“[I]ssues challenging the discretionary
aspects of a sentence must be raised in a post-sentence motion or by
presenting the claim to the trial court during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect of a sentence is
waived.”) (citation omitted).
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J-S44005-20
Notwithstanding waiver, we would conclude that Appellant’s sentencing
challenge is meritless. We note:
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion. … [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Moury,
992 A.2d 162
, 169–70 (Pa. Super. 2010)
(citation omitted).
In this case, the trial court explained its sentencing decision in its Rule
1925(a) opinion, as follows:
In this case, the [c]ourt imposed sentences for Appellant’s
convictions of third[-]degree murder, aggravated assault,
possession of firearm prohibited, possession of firearm by minor,
and possessing instrument of crime. For third[-]degree murder,
the standard range sentence is 84-240 months, mitigated to 72
months, and the statutory maximum is 480 months. For
aggravated assault, the standard range is 42-60 months,
aggravated to 72 months, mitigated to 30 months, and the
statutory maximum is 240 months. For possession of firearm
prohibited, the standard range is 30-42 months, aggravated to 54
months, mitigated to 18 months, and the statutory maximum is
120 months. For possession of firearm by a minor, the standard
range is restorative sanctions to 6 months, aggravated to 9
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J-S44005-20
months, and the statutory maximum is 60 months. For
possessing instrument of a crime, the standard range is
restorative sanctions to 9 months, aggravated to 12 months, and
the statutory maximum is 60 months. Therefore, the sentence
the [c]ourt imposed on Appellant went above the Sentencing
Guidelines, but were within the statutory maximum.
At the time of sentencing, the sentencing guidelines were
placed on the record in accordance with 42 P[a.]C.S.[] § 9721(d).
N.T. Sentencing Hearing[, 2/21/13,] at 42-45. Additionally, the
[c]ourt placed numerous reasons for Appellant’s sentence on the
record:
In fashioning a sentence, I have considered everything in
the pre-sentence report. I have considered the impact on
the victims and the victims’ family. I have considered the
fact that [Appellant]’s conduct caused Mr. Pimental
immense[,] immeasurable suffering over six months. I
have considered the sentencing guidelines. I have
considered the testimony of [Appellant’s] probation officers
- Juvenile Probation Officers, the testimony of Mr. Snyder
and Mr. Heydt. I’ve consider his juvenile record and his
successes and failures during his supervision in the Juvenile
Justice System. I’ve considered his family background. It
is clear that he had a very weak family structure. He had
virtually no parental supervision. I’ve considered the fact
that he did not do very well in the juvenile system. He did
not do very well under supervision. He violated his juvenile
probation on a number of occasions. I’ve certainly
considered the testimony of Investigator Carrasquillo and
the videotape of Mr. Pimental. I can’t even imagine what it
would have been like for Mr. Pimental and his family during
those long six months that he was confined to a hospital bed
before he succumbed to his injuries. And I’ve certainly
considered the testimony of Mrs. Rivera. I have considered
the threat to the safety of the public that may be posed by
[Appellant] at this time and I have considered the degree of
[Appellant’s] culpability in fashioning my sentence…. And I
have considered the rehabilitative needs of [Appellant].
[Appellant’s] conduct caused the unnecessary deaths of two
young men. What began as an innocent dance party on a
hot summer night turned into a tragedy because [Appellant]
brought a gun to the party. [Appellant] was in possession
of a gun [and] he was not legally allowed to possess a gun.
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J-S44005-20
Id. at 59-60.
The decision to sentence outside the Sentencing
Guideline[s] is not a decision this [c]ourt undertakes lightly. This
[c]ourt carefully considered the Sentencing [G]uidelines;
Appellant’s juvenile record; the testimony of his Juvenile
Probation Officers and his failure in the Juvenile Justice System;
the seriousness of the crime and the pain and suffering he
infl[i]cted on his victim’s [sic] and their families; the need to
protect the community and deter similar future conduct; the
recommendation of the district attorney; and statements made by
Appellant.
The crime[s] committed by Appellant [were] incredibly
serious and caused immeasurable pain and suffering. This
tragedy only occurred because Appellant brought a gun he was
not legally allowed to possess to a dance party. His actions
resulted in the death of two young m[e]n, one [of] who[m] went
through incredible suffering for six months before succumbing to
his injuries. This [c]ourt also considered that Appellant had a
substantial history in the Juvenile Justice System, … which he did
not respond to positively[,] and [he] continued to involve himself
in crime.
Therefore, the [c]ourt properly considered the
circumstances of this case, stated on the record the reason why it
went above the Sentencing Guidelines and imposed this sentence,
and, in light of this, imposed a sentence that was reasonable and
not manifestly excessive.
TCO at 13-15.
Based on the court’s discussion and the record in this case, we would
discern no abuse of discretion in the court’s sentencing decision. The court
clearly considered the mitigating factors mentioned by Appellant herein, as
well as the statutory factors set forth in section 9721(b). It also offered a
thorough explanation for his sentence. Accordingly, even if not waived, we
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would deem Appellant’s challenge to the discretionary aspects of his sentence
meritless.5
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2020
____________________________________________
5 We note that Appellant also cursorily mentions that his third-degree murder
sentences are illegal, claiming they exceed the statutory maximum term of
incarceration of 40 years. See Appellant’s Brief at 19; 18 Pa.C.S. § 1102(d)
(“[A] person who has been convicted of murder of the third degree … shall be
sentenced to a term which shall be fixed by the court at not more than 40
years.”). At the sentencing hearing, the court initially imposed 20 to 40 years’
incarceration, plus a consecutive term of 20 years’ probation, for each of
Appellant’s third-degree murder convictions. See N.T. Sentencing at 68-69.
Appellant is correct that those sentences were illegal. 42 Pa.C.S. § 9754(a)
(“In imposing an order of probation the court shall specify at the time of
sentencing the length of any term during which the defendant is to be
supervised, which term may not exceed the maximum term for which the
defendant could be confined, and the authority that shall conduct the
supervision.”). However, Appellant ignores that the Commonwealth notified
the court of the illegality of those sentences, and the court amended them to
omit the probationary tail. See N.T. Sentencing at 71. Accordingly,
Appellant’s sentences of 20 to 40 years’ incarceration for his third-degree
murder convictions are not illegal.
- 16 - |
4,638,815 | 2020-12-02 17:12:18.388547+00 | null | http://www.pacourts.us/assets/opinions/Superior/out/J-A23044-20m - 104621374121112479.pdf | J-A23044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TIMOTHY LEE JACOBS JR. :
:
Appellant : No. 916 EDA 2020
Appeal from the Judgment of Sentence Entered February 7, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0001942-2018
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 02, 2020
Timothy Lee Jacobs, Jr. (Jacobs) appeals from the February 7, 2020
judgment of sentence imposed by the Court of Common Pleas of Chester
County (trial court) following his convictions for third-degree murder and
related offenses. On appeal, Jacobs challenges two evidentiary rulings and
the discretionary aspects of his sentence. We affirm.
I.
We glean the following facts from the trial court’s opinion:
The facts at trial established that, on April 10, 2018, [Jacobs] and
his half-brother, Tyrell Jacobs, pursued and killed Eric Brown by a
fatal gunshot wound to the chest after a dispute during a
basketball game. The Commonwealth presented evidence, inter
alia, in the form of video footage taken inside the Star Social Club,
where the killing occurred. On the video, as [Jacobs] walked up
to the entrance of the bar, one could see the outline or “printing”
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A23044-20
of a firearm tucked into the waistband of his pants. Once inside,
[Jacobs] and Tyrell Jacobs repeatedly attempted to start a fight
with the victim. The video footage shows that he attempted to
entice Mr. Brown to leave the bar to go outside. Mr. Brown
refused, instead trying to diffuse the situation. The footage also
reveals that [Jacobs] brandished his weapon in the crowded bar,
aimed the weapon at the victim, and chased the victim around the
bar. The attackers eventually cornered Mr. Brown in a rear
storage room as he attempted to escape through the back door.
It was locked. There was no way out. The video shows Tyrell
Jacobs at the door to the storage room, blocking it, and firing one
shot at Eric Brown’s chest, taking his life. The videotape of the
entire event, from the chase, pursuit, corner, and murder was
shown to the jury. [Jacobs] and Tyrell Jacobs fled the scene to
avoid apprehension.
Trial Court Opinion (TCO), 6/8/20, at unnumbered 2-3.
Jacobs was arrested in West Philadelphia a week later on April 17, 2018.
When taken into custody, Jacobs had on him a loaded Sig Sauer 9mm
handgun. Ballistics testing revealed that the weapon fired neither the
cartridge casing found at the murder scene nor the projectile recovered from
the victim. Before trial, Jacobs filed a motion in limine to preclude the Sig
Sauer 9mm, arguing that its admission would result in unfair prejudice,
confuse the issues and mislead the jury. The Commonwealth countered that
the Sig Sauer 9mm was relevant to proving that Jacobs possessed a handgun
in the Star Social Club, asserting that it was the handgun seen in the security
video. The trial court agreed and denied the motion.
At trial, the Commonwealth introduced video surveillance footage
showing several angles inside of the Star Social Club. The footage captured
the initial altercation and chase in the bar portion of the club, as well as the
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shooting near the rear entrance. In addition, the Commonwealth introduced
video surveillance footage from surrounding areas depicting the Jacobs
brothers’ arrival at the bar and flight after the shooting.
During its case in chief, the Commonwealth also presented Nyeirah
Jones, who testified that the Jacobs brothers stayed at her home one night
while they were fugitives. Despite not expressing any lack of recollection, she
was shown her police statement over Jacobs’ objection. After reading her
statement, she testified her memory was refreshed and that one of the
brothers said “main man had it coming” in reference to the murder.
After the reception of the evidence, the jury found Jacobs guilty of third-
degree murder, aggravated assault, simple assault, firearms not to be carried
without a license, possession of an instrument of crime, possession of a
concealed weapon, recklessly endangering another person (four counts) and
conspiracy to commit aggravated assault.1 On February 7, 2020, Jacobs was
sentenced to serve an aggregate term of 31 to 62 years’ imprisonment.2
Jacobs filed a timely motion to modify his sentence, which the trial court
____________________________________________
1 18 Pa.C.S. §§ 2502(c), 2702(a)(1), 2701(a), 6106(a)(1), 907(a), 907(b),
2705 and 903(a). Tyrell Jacobs, who was tried jointly, was found guilty of
first-degree murder and sentenced to life imprisonment.
2 The trial court imposed 20 to 40 years’ imprisonment for third-degree
murder with consecutive terms of 3 to 6 years for the firearms offense, 1 to 2
years each for two of the reckless endangerment counts and 6 to 12 years for
conspiracy to commit aggravated assault. All other counts were either run
concurrently or merged.
-3-
J-A23044-20
denied. Jacobs timely appealed, and he and the trial court have complied with
Pa.R.A.P. 1925. On appeal, Jacobs challenges: (1) admission of the Sig Sauer
9mm; (2) the Commonwealth refreshing the recollection of Nyeirah Jones;
and (3) the discretionary aspects of his sentence. We address each issue in
turn.
II.
In his first claim, Jacobs challenges the denial of his pretrial motion in
limine to preclude admission of the Sig Sauer 9mm that the police recovered
when he was arrested a week after the murder.3
Generally, “[a]ll relevant evidence is admissible, except as otherwise
provided by law. Evidence that is not relevant is not admissible.” Pa.R.E.
402. “Evidence is relevant if: (a) it has any tendency to make a fact more or
less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Pa.R.E. 401. However, the trial court
____________________________________________
3 Our standard of review of a trial court’s evidentiary ruling is well-established:
The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Woodard,
129 A.3d 480
, 494 (Pa. Super. 2015)
(citations omitted).
-4-
J-A23044-20
“may exclude relevant evidence if its probative value is outweighed by a
danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403.
The trial court admitted the recovered handgun under the “similar
weapon exception,” which our Supreme Court has explained as follows:
A weapon not “specifically linked” to the crime is generally
inadmissible; however, the fact “the accused had a weapon or
implement suitable to the commission of the crime charged ... is
always a proper ingredient of the case for the prosecution.”
[Commonwealth v.] Robinson, [
721 A.2d 344
,] 351 [(Pa.
1998)] (alteration in original) (citation and internal quotation
marks omitted). “Any uncertainty that the weapon is the actual
weapon used in the crime goes to the weight of such evidence.”
Commonwealth v. Williams,
537 Pa. 1
,
640 A.2d 1251
, 1260
(1994) (citing Commonwealth v. Coccioletti,
493 Pa. 103
,
425 A.2d 387
, 390 (1981)). “The only burden on the prosecution is to
lay a foundation that would justify an inference by the finder of
fact of the likelihood that the weapon was used in the commission
of the crime.” [Commonwealth v.] Lee, [
662 A.2d 645
,] 652
[(Pa. 1995)] (citing Commonwealth v. Thomas,
522 Pa. 256
,
561 A.2d 699
, 707 (1989) (“If a proper foundation is laid, the
weapon is admissible where the circumstances raise an inference
of the likelihood that it was used.”)).
Commonwealth v. Christine,
125 A.3d 394
, 400 (Pa. 2015).
In Christine, the Commonwealth tried to introduce evidence that the
defendant possessed a shank even though it was not used in the crime. In
holding that the “similar weapon exception” does not apply to cases where the
weapon at issue was not used in the crime, our Christine Court explained:
The cases cited deal with weapons that might have been used.
Possession of a handgun may be relevant even if the particular
gun possessed cannot be proven to be the one used in the crime.
-5-
J-A23044-20
That it was possessed may allow the inference it could have been
used. Here, however, the exception is not in play, as the shank
was admittedly not used in the pertinent assault. The theory of
the exception is that the weapon possessed could have been the
weapon used—that simply is not the case here, and admission
under the similar-weapon exception was error. To the extent that
cases affirm use of this exception strictly on the basis of similarity,
without an inference they were the weapons used, we reject them.
Id. at 400-01 (footnote omitted).
There was no dispute at trial that Jacobs had a firearm inside the Star
Social Club, as the security video shows him brandishing a handgun while he
and his brother chase the victim. Besides the security video, however, the
Commonwealth presented no other evidence tending to prove that the
handgun seen in the security video was the Sig Sauer 9mm Jacobs possessed
when he was arrested on April 17, 2018. Jacobs focuses on this lack of
evidence in arguing that the Commonwealth failed to lay a foundation that
would allow the jury to infer that the Sig Sauer 9mm was “similar in color,
shape, or type” to the handgun that he possessed in the Star Social Club. See
Jacobs’s Brief at 21. Moreover, Jacobs observes there was no evidence linking
the two firearms, as none of the Commonwealth’s witnesses described the
“caliber, make, model, color, shape, or length of the firearm in the video
footage of April 10, 2018.” Id. at 27.
Jacobs is correct: there was no evidence connecting the two firearms
beyond them both being handguns and being possessed by Jacobs, albeit one
week apart. The issue then is whether more was needed to allow the inference
-6-
J-A23044-20
that they were the same handgun, as that would be the only permissible
grounds for admission.4 We find there was not.
In limiting the application of the “similar weapon exception,” Christine
expressly recognized that possession of a handgun, even if not proven to have
been used in the crime, “may allow the inference it could have been used.”
Christine, 125 A.3d at 400. In this case, Jacobs was charged with possessing
firearms without a license, possession of an instrument of crime and
possession of a concealed weapon on April 10, 2018, the date of the Star
Social Club incident. Jacobs’ possession of the Sig Sauer 9mm on April 17,
2018, allowed the inference that it could have also been the handgun that he
possessed during that incident. That being the case, there was enough for
the “similar weapon exception” to apply, as the “[t]he theory of the exception
is that the weapon possessed could have been the weapon used[.]” Id. at
401 (emphasis added).
Jacobs emphasizes that Christine states that “[t]o the extent that cases
affirm use of [the similar weapon] exception strictly on the basis of similarity,
without an inference they were the weapons used, we reject them.” Jacobs’
____________________________________________
4 We reject the Commonwealth’s suggestion that the firearm was admissible
as other crimes evidence under Pa.R.E. 404(b)(2). See Commonwealth’s
Brief at 21. The trial court suggests the same in its Pa.R.A.P. 1925(a) opinion.
See TCO at 8. The Commonwealth argues that the firearm was admissible as
other crimes evidence under Pa.R.E. 404(b)(2), but it never gave notice of its
intent to have the firearm admitted as other crimes evidence as required by
Pa.R.E. 404(b)(3).
-7-
J-A23044-20
Brief at 32 (quoting Christine, 125 A.3d at 401). Read in isolation, this
statement supports his contention that possession alone is insufficient for
application of the exception. However, when read in context of the Court’s
discussion, the statement merely disavows those decisions applying the
exception to similar weapons that were not used in the crime. See, e.g.,
Commonwealth v. Williams,
58 A.3d 796
, 801 (Pa. Super. 2012) (admitting
photograph of defendant with firearm was admissible to show that he
possessed a weapon similar to the one used to commit his crimes, even though
ballistics testing precluded it from being the murder weapon). Indeed,
Christine recognizes the exception may still apply when there is an inference
the weapon was used, which, as discussed above, arises when a firearm is
possessed and cannot be excluded as being used in the crime. Accordingly,
based on Christine, the trial court did not abuse its discretion in denying the
motion in limine and allowing the Sig Sauer 9mm to be admitted.
Even if the handgun should have been excluded, any such error was
harmless. Where there is overwhelming evidence of the defendant’s guilt,
admission of evidence of the defendant’s possession of a weapon not directly
connected to the relevant crimes is harmless. See Commonwealth v.
Hernandez, 230 480, 489-90 (Pa. Super. 2020) (citations omitted). After
reviewing the surveillance videos admitted at trial, we find there was
overwhelming evidence of Jacobs’ guilt that he possessed a weapon and was
an accomplice to the murder.
-8-
J-A23044-20
The videos show Jacobs in the passenger side of a white sedan that
passes the Star Social Club and parks around the corner, backing up into the
spot so it can get out faster. Jacobs and the driver remain in the car for
several minutes. In the meantime, Tyrell Jacobs is seen waiting in a SUV for
the victim. After the victim walks past and into the bar, Tyrell Jacobs gets out
and walks down an alley behind the bar. Around the same time, Jacobs gets
out of the white sedan and begins to walk toward the Star Social Club while
talking on his cell phone. Jacobs, however, soon turns around and walks to
the alley to join his brother, who is also on his cell phone. The brothers then
walk to the Star Social Club while the driver of the white sedan waits.
Inside the bar, the brothers confront the victim and try to start a fight,
with Tyrell Jacobs punching him and Jacobs motioning for him to step outside.
Despite this, the victim does not fight back. The brothers leave the bar but
soon return. This time, when Tyrell Jacobs punches the victim, he hits back
and tries to run away. The brothers chase him around the bar, with Jacobs
pulling out his handgun and pointing it at the victim as he tries to get away.
With the front entrance cut off, the victim runs to the backroom. Tyrell Jacobs
pursues the victim and shoots him once in the chest. As the murder is being
committed, Jacobs is seen putting the handgun back into his pants before
rushing out of the front entrance and running to the waiting white sedan.
Once Jacobs gets in, the sedan takes off.
-9-
J-A23044-20
The surveillance videos constitute overwhelming evidence that Jacobs
was an accomplice to the murder, showing his every move before, during and
after the murder. At trial, Jacobs attempted to portray this as a bar fight gone
wrong. However, the videos show that the brothers were waiting for the
victim to arrive and then directly confronted him inside the bar. Moreover,
the videos show Jacobs pointing his gun at the victim as he runs around the
bar. Then, after his brother shoots the victim, Jacobs runs back to the waiting
sedan and immediately flees.
Compared to this, the admission of the Sig Sauer 9mm played a minor
role in the trial. Neither defense counsel nor the Commonwealth mentioned
the handgun during their closing arguments. Moreover, that Jacobs possessed
a firearm inside the Star Social Club can be clearly seen in the Star Social Club
security video, not to mention that his defense counsel conceded in her
opening statement that Jacobs had a handgun and pointed it at the victim
inside the Star Social Club. See N.T., 10/14/19, at 123. As a result, any
error concerning the admission of the Sig Sauer 9mm was harmless.
III.
Next, Jacobs argues that the trial court erred in allowing the
Commonwealth to refresh the recollection of Nyeirah Jones through her police
statement without first establishing that she could not recollect what the
brothers said when they were in her home.
- 10 -
J-A23044-20
Pennsylvania Rule of Evidence 612 provides that a witness’s memory
may be refreshed with a writing or other item. Pa.R.E. 612(a). As Jacobs
notes in his brief, in Commonwealth v. Proctor,
385 A.2d 383
, 385 (Pa.
Super. 1978), this Court held that a proper foundation must first be
established before a party may avail himself or herself of the rule permitting
a witness to refresh his or her recollection. Specifically, we held,
[t]o permit the use of a writing in order to refresh the memory of
a witness, the proponent must show: (1) that the witness’[s]
present memory is inadequate; (2) that the writing could refresh
the witness’[s] present memory; and (3) that reference to the
writing actually does refresh the witness’[s] present memory.
Id.
(citation omitted).
Nyeirah Jones testified pursuant to a material witness warrant. Afraid
she would be hesitant to testify, the Commonwealth preemptively showed her
a police statement that she gave to the police not long after the brothers
stayed overnight at her home.
Q: Now, did you have the opportunity at all in any of this to speak
with the Jacobs’ brothers about what you were aware of, what had
happened at the Star Social?
A: Yes.
Q: What did they say about that?
A: I’m asking too much.
Q: You’re asking too much. I’d like to show you something, Miss
Jones, if that’s okay?
A: That’s fine.
- 11 -
J-A23044-20
Q: Do you remember speaking with the Upper Darby Police
Department and writing out a written statement with them?
A: Yes.
N.T., 10/15/19, at 197-98.
Jacobs objected and argued that the witness did not testify that she was
unable to recall what was said in her home. Id. at 198. The trial court decided
that the Commonwealth could show her the statement.
THE COURT: You can show the statement to her. I will allow her
to read it. Then you ask the follow-up question, does that refresh
your recollection about what anything else you may have said,
that’s fine. It may refresh it, it may not, and we’ll cross the bridge
when we get there.
Id. at 199. After being shown her statement, Nyeirah Jones stated that it
refreshed her memory and that one of the brothers said, “Main man had it
coming.” Id.
We need not undertake a lengthy analysis of this claim, as it is clear the
Commonwealth did not establish that the witness’s memory was exhausted.
The Commonwealth concedes as much in its brief, but argues that its failure
to show that Nyeirah Jones’ memory was inadequate is excused because she
testified under a material witness warrant; she gave an initial “vague and
general answer” and then testified her memory was refreshed after being
shown her statement. See Commonwealth’s Brief at 31. We are unpersuaded
by these arguments, none of which are supported with case law for the motion
that the first requirement for refreshing recollection can be excused. The
witness never stated that her memory was inadequate or that she could not
- 12 -
J-A23044-20
recall what the brothers said. Likewise, her initial answer that the brothers
said she was “asking too much” was not vague or general. Until she expressed
that she could not remember what was said or was unwilling to do so, it was
error for her to be shown her police statement, even if she said afterwards
that it refreshed her memory.
This does not end our inquiry, as we must determine whether this error
was harmless. A judgment can be sustained despite the erroneous admission
of evidence if the error could not have contributed to the verdict.
Commonwealth v. Poplawski,
130 A.3d 697
, 716 (Pa. 2015). Harmless
error exists where:
(1) the error did not prejudice the defendant or the prejudice was
de minimis; (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict. The Commonwealth has the burden of
proving harmless error beyond a reasonable doubt.
Commonwealth v. Radecki,
180 A.3d 441
, 461 (Pa. Super. 2018) (citations
and quotation marks omitted).
Jacobs asserts this was not harmless error because the evidence “was
directly on point with regard to malice, the pivotal issue in any murder case.”
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J-A23044-20
Jacobs’ Brief at 47.5 He contends that the statement that the victim “had it
coming” was enough for the jury to find malice. Id. at 48. While neither de
minimis nor cumulative, we concluded that the witness’s testimony was
insignificant by comparison to the properly admitted and uncontradicted
evidence of guilt, namely, the surveillance videos.
Besides the statement not being directly attributed to Jacobs, all of his
actions in relation to murder were captured on video. In particular, Jacobs
arrives in a car that backs up into its parking spot, suggesting he anticipated
that the car would need to get away quick. See N.T., 10/16/19, at 64. Jacobs
then waits in the sedan for several minutes until his brother walks down the
alley, at which point he gets out of the car and is on his cell phone. Because
of the way Jacobs immediately turns around to meet his brother, who was
also on his cell phone, it is evident that the two were talking to each other
before going to confront the victim. Id. at 78-79, 104. The videos
demonstrate that Jacobs was in communication with his brother before the
murder and knew that they would need to get away quick, especially since the
driver of the white sedan remained parked waiting for Jacobs.
____________________________________________
5 To sustain a conviction of third-degree murder, the Commonwealth must
prove that the defendant killed another person with malice. Commonwealth
v. Knox,
219 A.3d 186
, 195 (Pa. Super. 2019). Malice is defined as
“exhibiting an extreme indifference to human life.”
Id.
A fact-finder may find
malice not only in an intentional killing, “but also in an unintentional homicide
where the perpetrator consciously disregarded an unjustified and extremely
high risk that his actions might cause death or serious bodily injury.”
Id.
- 14 -
J-A23044-20
Jacobs’ malice argument becomes even weaker in light of the
surveillance video from inside the bar. Tellingly, rather than order a drink,
the brothers went directly to the victim and confronted him. When the victim
tried to run away after being punched, Jacobs pulled out his handgun and
chased him, cutting off the victim’s attempt to exit. That Jacobs pulls out his
handgun and stops the victim’s escape contradicts his argument that he did
not exhibit any malice. Then, after corralling the victim into the backroom,
Jacobs waits near the door while his brother chases him down and shoots him
when he is unable to escape. Jacobs then runs out of the bar and goes directly
to the waiting white sedan. Signicantly, the video shows that the driver starts
the sedan even before Jacobs reaches the car and then drives away within
seconds of Jacobs getting in. This video evidence, when taken together,
shows that Jacobs was an accomplice to his brother in killing the victim.
According, Jacobs’ second issue merits no relief.
IV.
Finally, Jacobs alleges that the trial court abused its discretion in
imposing the statutory maximum for third-degree murder and consecutive
sentences for firearms not to be carried without a license, conspiracy to
commit aggravated assault and two counts of recklessly endangering another
person. Specifically, Jacobs contends that the trial court failed to state its
reasons for its sentence as required by 42 Pa.C.S. § 9721(b), which provides,
in relevant part, that “the court shall make as a part of the record, and disclose
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J-A23044-20
in open court at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.” Id.
Jacobs’ claim implicates the discretionary aspects of the trial court’s
sentence. “Challenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry,
150 A.3d 987
,
991 (Pa. Super. 2016) (citation omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley,
31 A.3d 293
, 296 (Pa. Super. 2011) (citations
omitted).
Jacobs has filed a timely notice of appeal and included a separate Rule
2119(f) statement in his brief. Moreover, he properly preserved his claim by
timely filing a post-sentence motion to modify or reduce his sentence. Lastly,
his contention that the trial court failed to state adequate reasons on the
record for his sentence qualifies as a substantial question for our review. See
Commonwealth v. Flowers,
149 A.3d 867
, 871 (Pa. Super. 2016) (citation
- 16 -
J-A23044-20
omitted). Jacobs’ claims, therefore, raise a substantial question, and we will
consider the substantive merits of his sentencing issues.6
Before hearing from Jacobs and the Commonwealth, the trial court
stated the following:
[B]efore we begin the various presentations, and this is not to cut
off a presentation but, rather, to give you some indication of that
I have done in preparation, as to [Jacobs] I’ve had the opportunity
to review the Chester County Adult Probation and Parole
Presentence Investigation Report, which was completed as of
January 30, 2020. That report contained with it a number of
attachments, all of which I have read, specifically focusing on
various reports and material that was prepared for earlier
hearings. And, for the record, let me say I have reviewed the
report from the Network for Behavioral Change dated November
of 2005; the first of several reports from Bruce Mapes, Ph.D.,
dated April of 2006; reports from the Community Mental Health
Services and Human Services dated May of 2006; an evaluation
from the Chester County Youth Service dated October of 2006;
second report from Bruce Mapes dated September of 2006; a
report from Summit Quest Academy dated March 12th of 2007; a
third report from Bruce Mapes dated October of 2008; a second
Psychiatric Evaluation from Chester County Youth Services dated
March 19 of 2009; a fourth report from Dr. Mapes dated May of
2009; and a final report dated June of 2009.
____________________________________________
6 Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Zirkle,
107 A.3d 127
, 132 (Pa. Super. 2014) (citation
omitted).
- 17 -
J-A23044-20
I have also received a Commonwealth’s Memorandum In Aid Of
Sentencing and a Defendant’s Memorandum In Aid Of Sentencing.
I thank both attorneys for taking the time to put their thoughts
down in writing to give me an opportunity to think about it going
forward.
N.T., 2/7/20, at 5-6.
Then, after hearing from both Jacobs and the Commonwealth, the trial
court stated the following before imposing sentence.
I have taken a lot of time to read and consider all of the material
that was presented on your behalf. I certainly listened to the
family of Eric Brown, and have thought long and hard about the
events of April 10th, 2018. I have to say that I am saddened by
the reading of the Presentence Investigation because somewhere
in there, somewhere inside there is a very intelligent, motivated
young man. The Presentence Investigation Report contained a list
of grades that you had, A’s and B’s in relatively difficult subjects.
The fact that you graduated, given the homelife that you had, is
admirable. I am deeply saddened for you that circumstances
didn’t channel that brain and drive into a positive world, positive
direction.
Having reviewed all of the material, considered all of the
necessary guidelines and the Sentencing Commission, it’s now my
obligation to impose sentence, and I do so, as follows …
Id. at 32-33.
After reviewing the sentencing transcript, we find no abuse of discretion
in the trial court’s sentence. Where, as here, the trial court has the benefit of
a presentence investigation, “it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura,
975 A.2d 1128
, 1135 (Pa. Super. 2009)
(citation omitted). Relevant to Jacobs’ contention, “[t]he sentencing judge
- 18 -
J-A23044-20
can satisfy the requirement that reasons for imposing sentence be placed on
the record by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all relevant
factors.”
Id.
(citation omitted). The trial court laid out, on the record, all of
the materials that it had reviewed in consideration of its sentence. This is
adequate for satisfying Section 9721(b), as a sentencing court is not required
to undertake a lengthy discourse of its reasons for imposing its sentence. See
Commonwealth v. Rush,
162 A.3d 530
, 544 (Pa. Super. 2017) (citation
omitted). As a result, based on our review of the record, we find that the trial
court did not abuse its discretion at sentencing.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/20
- 19 - |
4,602,968 | 2020-11-20 19:30:56.850944+00 | null | null | W. M. SCOTT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
MRS. W. M. SCOTT, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Scott v. Commissioner
Docket Nos. 44705, 44706.
United States Board of Tax Appeals
March 16, 1933, Promulgated
1933 BTA LEXIS 1277">*1277 Where upon execution of an oil and gas lease a lump sum is received by the lessor in lieu of bonus and royalties, the amount thereof is income in the year in which it is received.
J. B. Allred, Esq., for the petitioners.
Frank B. Schlosser, Esq., and R. B. Cannon, Esq., for the respondent.
LANSDON
27 B.T.A. 951">*951 OPINION.
LANSDON: The petitioners were members of a Texas marital community throughout the year 1926, as to which the respondent has asserted deficiencies against each of them in the amount of $489.29. Such deficiencies arise from the respondent's determination that an amount of $25,000 received by the petitioners for a ten-year lease of property owned by them to the Magnolia Petroleum Company was taxable income when received. The stipulated facts, which we incorporate by reference as our findings of fact, show that in 1926 the petitioners executed and delivered to the Magnolia Petroleum Company an oil and gas lease covering 5,000 acres of land 27 B.T.A. 951">*952 owned by them in fee in consideration of the payment to them of $25,000. The lease provided that such amount was payment not only as a bonus but in lieu of any and all delayed rentals1933 BTA LEXIS 1277">*1278 usually provided for in oil and gas leases.
A bonus paid for an oil and gas lease is in effect an addition to the royalties or rentals already determined. It is really royalty or rental in a lump sum or down payment. . Every bonus paid for an undeveloped oil and gas lease is an advance rental at least to a certain extent. In the instant case the total $25,000 is in the nature of advanced rental, since there is no other rental provided for in the lease. The petitioners contend that it must be spread over the ten-year term of the lease. There is no merit in such contention whether their books are kept on a receipts and disbursements basis or on the accrual basis. A bonus received by a lessor of an oil lease is taxable income to the lessor. See , and . When the execution of an oil and gas lease is followed by production of oil, and bonus and royalties are paid to the lessor, both involve at least some return of the capital investment in the oil in the ground, for which a depletion allowance must be made. In the instant1933 BTA LEXIS 1277">*1279 case the petitioner makes no claim for depletion and there are no facts in the stipulation which disclose that they are entitled to such deductions. The respondent's determination must be approved.
Decision will be entered for the respondent. |
4,491,899 | 2020-01-17 22:03:07.404383+00 | Smith | null | *1383OPINION.
Smith:
At the hearing of this proceeding the petitioner did not produce any evidence purporting to substantiate the deductibility of any portion of the amount of $13,345.95 claimed as a deduction from gross income as debts ascertained to be worthless and charged off within the year or as a loss, except as to the note of $11,000 and accrued interest thereon of $330. In this state of the record it must be held that the petitioner has waived its claim to the deduction of $2,015.95 of the amount disallowed by the respondent.
With respect to the $11,000 note, it is to be noted that it was secured by a chattel mortgage on the fixtures and equipment of the Fairmont Market Company. The value of this security has not been shown nor is there evidence of any attempt on the part of the petitioner to take over the mortgage and property in settlement of the *1384note and accrued interest. Cf. Daniel Hecker, 17 B. T. A. 873. The petitioner as creditor has not shown that it had exhausted the liability on said security. See Benton Harbor State Bank, 20 B. T. A. 1106, in which the Board stated: “ If a debtor has given security for a loan, either in form of collateral or a bond, it is incumbent on him to exhaust the liability on same before he is entitled to claim the debt to be worthless.”
It was testified at this hearing that nothing occurred during the month of January, 1926, which would indicate that the note was any more uncollectible at the end of the month, when it was charged oil', than at the beginning of the month, when it was set up as an asset on petitioner’s books. See Simon Kohn, 8 B. T. A. 547; Ralph H. Cross, 20 B. T. A. 929.
It is also significant in the instant case that on the same date the $11,000, plus accrued interest, was charged off petitioner’s books, an entry was made on the books of the Fairmont Market Company crediting the surplus of that company with a like amount with the explanation, “ To Record Cancellation by Russo of Our Note to that Company for the Above Amount.” This would indicate a cancellation by agreement of the two companies, which was held to be not deductible in Crystal Paper Co., 2 B. T. A. 596.
The petitioner contends that the note was ascertained to be worthless in 1926 and that it was not known that it was worthless prior to the year 1926. In this connection it should be noted that the balance sheet of the Fairmont Market Company showed that that company was insolvent on December 31, 1924, and the result of the audit made in 1926 showed that it was also insolvent at the close of 1925. The audit only confirmed what was theretofore known. The mere fact of the insolvency of the debtor company does not, however, prove the worthlessness of the debt; for the note in this case was secured by a chattel mortgage on the fixtures and equipment of the Fairmont Market Company, the value of which is not shown by the record.
The basis for the deduction of a- bad debt is its cost or value at the date of acquisition if acquired subsequent to March 1, 1913. Charles F. Ayer, 7 B. T. A. 324; affd., 26 Fed. (2d) 547; O. N. Townsend et al., 13 B. T. A. 386. Where the basis can not be proved, no deduction can be allowed. T. G. Northwall Co., 13 B. T. A. 881; Skinner v. Eaton, 34 Fed. (2d) 575. In the instant case no cost or value as at date of acquisition has been proven and the record indicates that the note in question was worth no more at the date acquired than at the date charged off the books. Upon the record the determination of the Commissioner, that the petitioner is not entitled to deduct from its gross income any part of the $13,-345.95, must be sustained.
Judgment will be entered for the respondent. |
4,638,817 | 2020-12-02 17:12:18.836513+00 | null | http://www.pacourts.us/assets/opinions/Superior/out/J-A29010-20m - 104621307121108783.pdf | J-A29010-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DESHAWN BROWN :
:
Appellant : No. 3 MDA 2020
Appeal from the Judgment of Sentence Entered December 17, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004434-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 02, 2020
Appellant, Deshawn Brown, appeals from the December 19, 2019
Judgment of Sentence entered in the Dauphin County Court of Common Pleas
following his conviction of two counts of Possession with Intent to Deliver
(“PWID”), and one count each of Possession of Drug Paraphernalia and
Resisting Arrest.1 Appellant challenges the denial of a pre-trial Motion to
Suppress and the sufficiency of the Commonwealth’s evidence. Upon review,
we affirm.
The factual and procedural history is as follows. In August 2019,
Appellant was under the supervision of the Dauphin County Probation
Department for prior PWID convictions. As a part of his probation, Appellant
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. §§ 780-113(a)(30), (a)(32); and 18 Pa.C.S. § 5104, respectively.
J-A29010-20
agreed, inter alia, to the following terms and conditions: 1) that he would not
possess over $50 in cash without validation of its source; 2) that he would
allow the Probation Department to view his cell phone to check for drug
activity; 3) that he would not possess, use, or have available to his control
any drugs or drug paraphernalia; 4) that he would follow the Probation
Officer’s (“PO”) instructions and advice; and 5) that a PO would walk through
Appellant’s residence on the first home visit, and may walk through on
additional home visits.
On August 7, 2019, PO Rick Anglemeyer and PO Brandon Rigel arrived
at Appellant’s residence, which was an apartment building with several one-
room apartments inside, for a first-time home visit. They checked the front
and rear of the building to see if any doors were open. While at the rear
entrance, PO Anglemeyer, who had 15 years’ experience as a PO, observed
Appellant walk out the rear door and turn away. PO Anglemeyer immediately
smelled ”an overwhelming smell of burnt marijuana” coming from Appellant.
N.T. Motion Hearing, 11/25/19, at 6.
PO Anglemeyer called Appellant’s name and instructed Appellant to
come to him; Appellant complied. When PO Anglemeyer began to question
Appellant, Appellant attempted to use his cell phone to send a text message.
PO Anglemeyer requested to view the cell phone and was able to gain control
of it despite Appellant’s refusal. Appellant consented to a search of his person,
and PO Anglemeyer recovered a “thick wad of cash.” Id. The POs detained
Appellant and escorted him to his apartment. Appellant was visibly upset and
-2-
J-A29010-20
yelled towards the apartment door as they approached. When they were right
outside, Appellant broke loose, barged into the apartment, and grabbed a
large clear baggie of marijuana that was on a dresser next to a large knife.
Appellant’s girlfriend, Kathryn Galaskas (“Girlfriend”), who was also on
probation, was inside the one-room apartment. PO Anglemeyer and PO Rigel
subdued Appellant and Girlfriend, placed them outside of the apartment, and
radioed for police assistance.
Police Officer Maril Foose arrived at the scene, read Appellant his
Miranda2 rights, and obtained verbal consent from Appellant to search his
apartment and his car. Prior to searching the apartment, Appellant advised
Officer Foose that there were illegal drugs inside the apartment. Police
recovered $4,500, a large bag of marijuana, marijuana wax, one plastic cup,
one digital scale, and a box of sandwich bags. Appellant took ownership of
the cash and contraband by stating that everything belonged to him. Police
officers arrested him.
On August 8, 2019, the Commonwealth charged Appellant with PWID,
Possession of Drug Paraphernalia, and Resisting Arrest. On November 13,
2019, Appellant filed an Omnibus Pre-Trial Motion asserting that the POs
searched Appellant and Appellant’s residence without reasonable suspicion of
criminal activity or a violation of probation conditions, and therefore that the
____________________________________________
2 Miranda v. Arizona,
384 U.S. 436
(1966).
-3-
J-A29010-20
court should suppress any evidence obtained because of that search. Motion,
11/14/19, at ¶¶11-32.
The suppression court held a hearing and heard testimony from PO
Anglemeyer and Police Officer Foose, who testified to the above facts. The
suppression court also heard testimony from Girlfriend, who testified, in sum,
that she opened the door of the apartment, Appellant ran into the apartment
to protect her, and the POs searched the apartment immediately after
detaining Appellant and her. N.T. Motion Hearing, 11/25/19, at 30-40.
The suppression court made a finding that the probation officers had
reasonable suspicion to search Appellant and his residence due to Appellant’s
suspected drug use, Appellant’s refusal to turn over his cell phone, the large
amount of cash in Appellant’s wallet, and Appellant’s rush into his apartment
in an attempt to conceal contraband. Order, filed 12/6/19, at 2. Therefore,
the suppression court denied the Motion. Id. at 1.
On December 17, 2019, the trial court held a stipulated non-jury trial,
found Appellant guilty of all charges, and sentenced Appellant to an aggregate
term of 6 to 23 months’ incarceration.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925(b).
Appellant raises the following issues for our review:
A. Did the suppression court err when it determined that the
Appellant’s initial seizure by probation outside of his home was
lawful?
-4-
J-A29010-20
B. Did the suppression court err when it determined that the
probation department had reasonable suspicion to search []
Appellant’s apartment?
C. Did the suppression court err when it determined that a warrant
was not required prior to the search of [] Appellant’s apartment
when no exception to the warrant requirement existed?
D. Did the suppression court err when it found [] Appellant guilty of
[PWID] marijuana because there was insufficient evidence, even
after viewing the evidence in the light most favorable to the
prosecution, for the factfinder to find [] Appellant guilty beyond a
reasonable doubt in the absence of any evidence regarding the
element of intent?
Appellant’s Br. at 2 (some capitalization omitted).
In his first three issues, Appellant challenges the suppression court’s
denial of his Motion to Suppress. When we review the denial of a Motion to
Suppress, “we are limited to considering only the Commonwealth’s evidence
and so much of the evidence for the defense as remains uncontradicted when
read in the context of the record as a whole.” Commonwealth v. Yorgey,
188 A.3d 1190
, 1198 (Pa. Super. 2018) (en banc) (citation and internal
quotation marks omitted). When the testimony and other evidence support
the trial court’s findings of fact, this Court is bound by them and we “may
reverse only if the court erred in reaching its legal conclusions based upon the
facts.”
Id.
(citation omitted).
We are highly deferential to the suppression court’s factual findings and
credibility determinations. Commonwealth v. Batista,
219 A.3d 1199
, 1206
(Pa. Super. 2019). “It is within the suppression court’s sole province as
factfinder to pass on the credibility of witnesses and the weight to be given to
-5-
J-A29010-20
their testimony. The suppression court is free to believe all, some or none of
the evidence presented at the suppression hearing.” Commonwealth v.
Elmobdy,
823 A.2d 180
, 183 (Pa. Super. 2003) (citations omitted). If the
record supports the suppression court’s findings, we may not substitute our
own findings. Bastista, 219 A.3d at 1206. However, we give no deference
to the suppression court’s legal conclusions and review them de novo. Id.
“The scope of review from a suppression ruling is limited to the
evidentiary record created at the suppression hearing.” Commonwealth v.
Neal,
151 A.3d 1068
, 1071 (Pa. Super. 2016) (citation omitted). Importantly,
“[o]nce a motion to suppress evidence has been filed, it is the
Commonwealth’s burden to prove, by a preponderance of the evidence, that
the challenged evidence was not obtained in violation of the defendant’s
rights.” Commonwealth v. Wallace,
42 A.3d 1040
, 1047-48 (Pa. 2012)
(citing Pa.R.Crim.P. 581(H)).
Appellant avers that the PO’s search of Appellant and subsequent search
of his apartment was illegal, and the suppression court should have granted
his Motion to Suppress evidence obtained as a result of the illegal search and
seizure. Appellant’s Br. at 4-5.
The Fourth Amendment of the United States Constitution and Article 1,
Section 8 of our state Constitution protect citizens from unreasonable searches
and seizures. In re D.M.,
781 A.2d 1161
, 1163 (Pa. 2001). “To secure the
right of citizens to be free from [unreasonable searches and seizures], courts
in Pennsylvania require law enforcement officers to demonstrate ascending
-6-
J-A29010-20
levels of suspicion to justify their interactions with citizens as those
interactions become more intrusive.” Commonwealth v. Beasley,
761 A.2d 621
, 624 (Pa. Super. 2000).
Probationers have limited Fourth Amendment rights because of the
diminished expectation of privacy they agree to when they sign their probation
agreement. Commonwealth v. Parker,
152 A.3d 309
, 316–17 (Pa. Super.
2016). Pursuant to 42 Pa.C.S. § 9912, a probation officer may search a
probationer he or she is supervising if there is “reasonable suspicion to believe
that the offender possesses contraband or other evidence of violations of the
conditions of supervision.” 42 Pa.C.S. § 9912(d)(1)(i). Also pursuant to
Section 9912, a probation officer may conduct a property search if there is
“reasonable suspicion to believe that the real or other property in the
possession of or under the control of the offender contains contraband or other
evidence of violations of the conditions of supervision.” Id. at (d)(2). Further,
Section 9912 instructs a PO, absent exigent circumstances, to obtain prior
approval of a supervisor to conduct a property search. Id. at (d)(3).
Nevertheless, the statute makes clear that no violation of Section 9912 “shall
constitute an independent ground for suppression of evidence in any probation
and parole or criminal proceeding.” Id. at (c).
“In establishing reasonable suspicion, the fundamental inquiry is an
objective one, namely, whether the facts available to the officer at the moment
of the intrusion warrant a person of reasonable caution in the belief that the
action taken was appropriate.” Parker, 152 A.3d at 318 (citation omitted).
-7-
J-A29010-20
“This assessment, like that applicable to the determination of probable cause,
requires an evaluation of the totality of the circumstances, with a lesser
showing needed to demonstrate reasonable suspicion in terms of both quantity
or content and reliability.” Id. (citation omitted).
Finally, the threshold question “is whether the probation officer had a
reasonable suspicion of criminal activity or a violation of probation prior to
the search.” Id. (citation omitted; emphasis added). “Accordingly, the fact
that a probationer signs a consent form permitting warrantless searches as a
term of his probation is insufficient to permit a search absent reasonable
suspicion of wrongdoing.” Id. (citation omitted).
In his first three issues, Appellant argues that the suppression court
erred when it determined that PO Anglemeyer had reasonable suspicion to
stop and search Appellant outside, and that there was reasonable suspicion to
conduct a warrantless search of Appellant’s apartment.3 Appellant’s Br. at 5-
10, 13, 15.
The suppression court determined that PO Anglemeyer, who had 15
years of experience as a PO, had reasonable suspicion to believe that
Appellant violated the terms of his probation because Appellant committed
____________________________________________
3 Appellant makes a specific argument that the initial interaction between PO
Anglemeyer and Appellant rose to the level of an investigative detention when
PO Anglemeyer told Appellant to stop and come back. Appellant’s Br. at 8.
This argument is waived as the Appellant did not raise it before the
suppression court, and, as such, the court did not address it. See Pa.R.A.P.
302 (a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”).
-8-
J-A29010-20
three probation violations in the presence of PO Anglemeyer. Trial Ct. Op.,
filed 3/19/20, 6-7. The court made findings that the smell of marijuana on
Appellant’s person and Appellant’s refusal to let PO Anglemeyer view his cell
phone constituted violations of Appellant’s probation agreement. Id. at 7.
The court opined:
Due to the smell of burnt marijuana and the cell phone
issue, the probation officer asked for consent to search
Appellant’s wallet. [A]ppellant consented and a “wad of
cash” was found in Appellant’s wallet. This was another
violation of Appellant’s rules of probation. As such, the
Appellant committed three violations in front of the
probation officer. Thus, the probation officer had
reasonable suspicion that [] Appellant was violat[ing] his
terms of probation (and the law) and was permitted to
detain [] Appellant.
Id. at 7 (emphasis added). Moreover, the court determined that these
combined violations provided “reasonable suspicion to suspect that Appellant
was in violation of his probation prior to the search of the apartment.” Id. at
6. Finally, the court emphasized that, despite the fact that there was
reasonable suspicion to search Appellant’s apartment, Appellant consented to
the search of the apartment. Id. at 9.
We agree with the suppression court’s conclusions. The facts support
the suppression court’s finding that PO Anglemeyer had reasonable suspicion
to believe Appellant violated his probation. We further conclude that the court
did not err in its legal conclusion that the search and seizure was legal because
it was supported by reasonable suspicion. Thus, no relief is due.
-9-
J-A29010-20
Appellant also argues that the POs violated Section 9912’s requirement
that, absent exigent circumstances, a PO should obtain prior approval from a
supervisor to conduct a property search. Appellant’s Br. at 14-15 (citing 42
Pa.C.S. § 9912(d)(3)). Whether the POs violated a Section of 9912 is of no
moment. As stated above, no single violation of Section 9912 “shall constitute
an independent ground for suppression of evidence[.]” 42 Pa.C.S. § 9912(c).
Accordingly, Appellant’s argument is devoid of merit.
In his final issue, Appellant challenges the sufficiency of the evidence.
He avers that the Commonwealth presented insufficient evidence to
demonstrate that he was guilty of PWID in the absence of any evidence
regarding the element of intent. Appellant’s Br. at 15. To support this claim,
Appellant advances the lone argument that the Commonwealth did not meet
its burden to prove PWID beyond a reasonable doubt because the evidence
the Commonwealth relied on was “tainted from the illegal search/seizure and
should have been excluded.” Id. at 16. As discussed above, we find no error
in the suppression court’s conclusion that the search and seizure in question
was legal. Accordingly, this argument lacks merit.
In conclusion, the trial court did not err when it found that there was
reasonable suspicion to believe that Appellant violated his probation,
concluded that the search of Appellant’s person and apartment was legal, and
denied Appellant’s Motion to Suppress.
Judgment of Sentence affirmed.
- 10 -
J-A29010-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/02/2020
- 11 - |
4,638,818 | 2020-12-02 17:12:19.05785+00 | null | http://www.pacourts.us/assets/opinions/Superior/out/J-A23043-20m - 104621331121109555.pdf | J-A23043-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA BOOZE :
:
Appellant : No. 809 EDA 2020
Appeal from the PCRA Order Entered February 20, 2020
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0001800-2005
BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED DECEMBER 02, 2020
Joshua Booze (Booze) appeals the order of the Court of Common Pleas
of Lehigh County (PCRA court) dismissing his petition for relief under the Post-
Conviction Relief Act (PCRA).1 His two central claims are that (1) he was
erroneously denied credit for time served on his sentence, and (2) his trial
counsel was ineffective in failing to object to an improper sentencing
enhancement. Because the petition was untimely, non-cognizable under the
PCRA or otherwise meritless, the order on review must be affirmed.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S. §§ 9541-9546.
J-A23043-20
I.
In May 2003 and March 2004, a New Jersey court sentenced Booze to
prison terms of three years and two to five years, respectively, for drug and
weapon related offenses. Booze was still serving those sentences when, on
April 20, 2005, he was transferred from New Jersey to Pennsylvania to stand
trial on numerous felony offenses that had taken place in Lehigh County.
The trial in Lehigh County established that Booze and his three
accomplices broke into a home and held a family at gunpoint in order to rob
them. See Trial Transcript, 7/12/2006, at pp. 50-63.2 On July 13, 2006,
Booze was found guilty of burglary, robbery, conspiracy, theft and false
imprisonment. He was sentenced on September 11, 2006, to an aggregate
prison term of 23 to 46 years, with credit for all time served. This sentence
included a statutory enhancement on the burglary count based on the use of
a deadly weapon, increasing the sentencing range from 24-36 months to 42-
54 months.
On September 21, 2006, the proceedings in Pennsylvania concluded and
Booze was transferred back to New Jersey to complete his New Jersey
sentences. On December 22, 2006, at the conclusion of those New Jersey
prison terms, Booze was returned to Pennsylvania, where he has since
____________________________________________
2 All the facts presented in this memorandum are gleaned from the certified
record.
-2-
J-A23043-20
remained. These interstate transfers of custody were carried out pursuant to
the Interstate Agreement on Detainers, 42 Pa.C.S. § 9101.3
Booze appealed the judgment of sentence in his Pennsylvania case and
it was affirmed on July 25, 2008. See Commonwealth v. Booze,
953 A.2d 1263
(Pa. Super. 2008). He timely filed a PCRA petition on March 6, 2009,
and the petition was granted in part on December 9, 2009. Another PCRA
petition was filed approximately one year later and it was denied on
September 15, 2011.
Booze filed his most recent PCRA petition on December 13, 2019, pro
se. He sought to compel the Pennsylvania Department of Corrections to grant
him credit for all time he served while in the custody of Pennsylvania, including
a period between April 20, 2005, and September 22, 2006. Further, he
asserted that his trial counsel was ineffective because he did not object to the
imposition of a weapon enhancement as to the robbery count. Booze claimed
that his sentence was improperly enhanced in this manner because he was
____________________________________________
3 At Booze’s sentencing in Lehigh County, the trial court explained to him
“[t]here are some circumstances on which out of state time [is] accredited
toward you, and there are certain circumstances under which they are not.”
Sentencing Transcript, 9/11/2006, at p. 13. The trial court was clear that
although Booze would get credit for time spent in custody on his Pennsylvania
case, the Department of Corrections would have to make the calculations as
to which periods of detention in New Jersey and Pennsylvania would be
considered Pennsylvania custody for the purposes of his Pennsylvania
sentence. See
id.
The trial court also told Booze that if he disagreed with
any of those calculations, there would be “mechanisms to challenge that.”
Id.
-3-
J-A23043-20
not found to have used a weapon. Booze also sought the appointment of
PCRA counsel.
As to the weapon enhancement claim, Booze stated that he could not
have discovered the grounds for the claim sooner because of mental health
issues and lack of access to recent case law that entitled him to relief.
According to Booze, he only learned that his sentence was illegal when a clerk
at his prison’s law library notified him of a recent opinion, Commonwealth
v. Swift, 886 WDA 2018 (Pa. Super. April 24, 2019), where we held that a
“use” weapon enhancement claim could not be imposed where a weapon is
only possessed by the perpetrator during an offense. Moreover, Booze argued
that the credit time issue was not subject to any time restrictions because the
PCRA court and Department of Corrections are bound to enforce his right to
credit time that had already been granted.
The PCRA court summarily denied the petition and PCRA counsel was
not appointed.4 The PCRA court also explained in its opinion that the reasons
given for Booze’s delay in filing the subject petition were insufficient to satisfy
any exceptions to the PCRA’s time-bar. See PCRA Court Opinion, 2/20/2020,
at 4-5. Nonetheless, the PCRA court had ordered the Clerk of Courts of Lehigh
County to complete a time credit calculation that confirmed that Booze had
____________________________________________
4 Prior to the dismissal, the PCRA court timely filed notice of its intent to
dispose of the petition without a hearing and Booze filed a response. See
Pa.R.Crim.P. 907.
-4-
J-A23043-20
received all credit he was entitled to on the Pennsylvania sentence. See PCRA
Court Order, 1/21/2020, at 5.
Booze timely appealed. In his appellate brief, he now raises the
following issues:
1. Did the [PCRA court] commit an error of law by failing to abide
by its own written and oral Orders that [Booze] be GRANTED credit
for time spent in Pennsylvania custody “as a result of criminal
charges” in this matter?
2. Did the [PCRA court] commit an error of law by failing to grant
credit to [Booze] for time spent in custody pursuant to Article V(f)
of the Agreement on Detainers, 42 Pa.C.S. § 9101;
3. Did the [PCRA court] commit an error of law when it contended
that [Booze] has failed to raise a timeliness exception to the PCRA
[as to his credit time and weapon enhancement claims]?
4. Did the [PCRA court] commit an error of law when it failed to
appoint counsel to represent [Booze] after it determined that
there existed sufficient issues of material fact to consider
[Booze’s] time credit claim, by ordering the Clerk of Courts to
perform a credit calculation?
5. Did the [PCRA court] commit an error of law when it failed to
provide [Booze] with a copy of the Clerk of Court’s credit
calculation, pursuant to its January 21, 2020 Order, prior to
dismissing [Booze’s] petition?
Appellant’s Brief, at iv (renumbered, suggested answers omitted).
-5-
J-A23043-20
II.
A.
We agree with the PCRA court that Booze’s PCRA petition was untimely.5
A PCRA petition must be filed within one year from the date that the
petitioner’s judgment of sentence became final. See 42 Pa.C.S. § 9545(b)(1).
If filed outside of that period, the petitioner has the burden of satisfying an
exception to the PCRA’s jurisdictional time-bar. See Commonwealth v.
Taylor,
933 A.2d 1035
, 1038 (Pa. Super. 2007) (“The PCRA timeliness
requirement . . . is mandatory and jurisdictional in nature.”); see also 42
Pa.C.S. § 9545(b)(1).
The PCRA enumerates three exceptions to its time-bar, including the
ground of after-discovered evidence, which Booze asserts here as to his
weapon enhancement claim. Under that provision, the time-bar does not
apply if “the facts upon which the claim is predicated were unknown to the
petitioner and could not have been ascertained by the exercise of due
diligence[.]” 42 Pa.C.S. § 9545(b)(1)(ii). Such a claim must be filed within
one year from the date it could have been raised. Id. at §9545(b)(2).
____________________________________________
5 The standard of review when examining a PCRA court’s denial of relief is
limited to determining whether the court’s findings are supported by the
record and free from legal error. See Commonwealth v. Carpenter,
725 A.2d 154
, 159-60 (Pa. 1999). The scope of review is limited to the findings
of the PCRA court and evidence on the record of the PCRA court’s hearing,
viewed in the light most favorable to the Commonwealth, as the prevailing
party. See Commonwealth v. Steele,
961 A.2d 786
, 820 (Pa. 2008).
-6-
J-A23043-20
In this case, Booze’s judgment of sentence became final on December
1, 2010, when our Supreme Court denied discretionary review of this Court’s
affirmance. From that point, Booze had 90 days to file a petition of writ of
certiorari to the United States Supreme Court. See Sup. Ct. R. 13. He then
had until March 1, 2012, to file a timely petition. See 42 Pa.C.S. § 9545(b)(3).
The subject petition was filed well after that date, on December 13,
2019. For his time credit issue, Booze made no attempt to satisfy an exception
to the PCRA’s time-bar, simply arguing that none was needed because the
Department of Corrections only had to recognize credit time that the
sentencing court had already granted. To the extent that Booze asserted a
miscalculation as grounds for PCRA relief, even if cognizable, the claim would
be barred as untimely.
As to the weapon enhancement issue, Booze attempts to satisfy the
after-discovered evidence exception by establishing that his poor mental
health and limited access to legal materials hindered him from discovering the
illegality of his sentence. He also states that he was only recently alerted to
a new decision entitling him to relief, Commonwealth v. Swift, 886 WDA
2018 (Pa. Super. April 24, 2019) (unpublished memorandum), which holds
that a “use” weapon enhancement is unlawful if only possession of a weapon
has been proven.
The assertion that Booze’s claim was delayed by mental health issues
does not satisfy the exception. The facts on which the claim are based concern
-7-
J-A23043-20
whether Booze was armed at the time of a robbery and whether a sentence
could be enhanced due to use of a deadly weapon. Booze’s alleged mental
incompetence and limited access to legal materials did not hinder his ability
to assert the factual basis of his PCRA claim at trial, direct appeal or a timely
PCRA petition (which he did not do).
Further, Booze’s reliance on Swift fails to qualify as after-discovered
evidence because judicial decisions are not in themselves new facts. See
Commonwealth v. Watts,
23 A.3d 980
, 986 (Pa. 2011) (holding that opinion
does not qualify as a previously unknown “fact” capable of triggering the
timeliness exception set forth in section 9545(b)(1)(ii) of the PCRA . . . [which]
applies only if the petitioner has uncovered facts that could not have been
ascertained through due diligence[.]”); Commonwealth v. Brandon,
51 A.3d 231
, 235 (Pa. Super. 2012) (same). Thus, the PCRA court properly
dismissed the PCRA petition as untimely.
B.
Even if Booze’s petition was timely, it would be of no avail. First, with
respect to the enhancement issue, Booze’s claim would fail on the merits. The
applicable statute defines “use” as employing a deadly weapon “in a way that
threatened or injured another individual[.]”
204 Pa. Code §303.10
(a)(2); see
also Commonwealth v. Shull,
148 A.3d 820
, 832 (Pa. Super. 2016) (holding
that defendant’s “mere possession of a gun transcended to his use of the gun”
-8-
J-A23043-20
when he removed it from under his clothing and pointed it at a victim’s face
during a robbery).
At trial, the evidence established that Booze and three other
perpetrators held a family at gunpoint during a robbery, which qualifies as
“use” of a deadly weapon for enhancement purposes. Since the enhancement
was applicable, Booze’s trial counsel could not have been ineffective in failing
to challenge its applicability. See Commonwealth v. Elam,
473 A.2d 185
,
187 (Pa. Super. 1984) (“Counsel may not be held ineffective for failing to
pursue a frivolous course of action.”).
C.
On the time credit issue, because the Department of Corrections has a
non-discretionary duty to apply credit for time served, the PCRA does not
afford a remedy for an incorrect calculation of minimum-maximum sentences.
The calculation is made initially by the Department of Corrections in
accordance with statutory requirements. If Booze can establish that the
Department of Corrections improperly calculated his sentence, then his
remedy is to file an original action in the Commonwealth Court asserting that
the calculation was improper. See Commonwealth. v. Heredia, 97 A.3d
-9-
J-A23043-20
392, 394-95 (Pa. Super. 2014); see also Commonwealth v. Perry,
563 A.2d 511
, 512-13 (Pa. Super. 1989).6
III.
Finally, Booze has argued that the PCRA court erred in denying him
counsel after he filed the subject petition pro se. However, an indigent PCRA
petitioner is only entitled to the appointment of counsel when filing his first
petition for PCRA relief. See Commonwealth v. Evans,
866 A.2d 442
, 444–
46 (Pa. Super. 2005); Pa.R.Crim.P. 904(C). Booze’s most recent petition is
his fourth, so the PCRA court did not err in denying him counsel. See
Commonwealth v. Kubis,
808 A.2d 196
, 200 (Pa. Super. 2002) (court did
not err in appointment counsel because “no such right exists for subsequent
PCRA petition[.]”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/2/20
____________________________________________
6Booze claims further that the PCRA court erred by denying his petition before
he was given a copy of a new credit calculation from the Clerk of Courts
depriving him of a chance to point out discrepancies in the calculation.
However, since the PCRA court had no jurisdiction to consider the underlying
merit of the credit time claim, any such claims of procedural error do not
warrant PCRA relief.
- 10 - |
4,654,756 | 2021-01-26 21:02:02.121663+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0578-35-0 | Sn the Gunited States Court of Federal Claing
OFFICE OF SPECIAL MASTERS
Filed: January 5, 2021
* * * * * * * * * * * * *
GENEVIEVE COSTABILE, * UNPUBLISHED
*
Petitioner, * No. 19-578V
*
V. * Special Master Gowen
*
SECRETARY OF HEALTH * Stipulation; Influenza (Flu);
AND HUMAN SERVICES, * Brachial Plexopathy.
*
Respondent. *
* * * * * * * * * * * * *
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for petitioner.
Lynn C. Schlie, United States Department of Justice, Washington, DC, for respondent.
DECISION ON STIPULATION!
On April 17, 2019, Genevieve Costabile (“petitioner”) filed a petition for compensation
within the National Vaccine Injury Compensation Program.” Petition (ECF No. 1). The petition
seeks compensation for injuries allegedly related to petitioner’s receipt of an influenza (flu)
vaccine, which is a vaccine contained in the Vaccine Injury Table (the “Table”),
42 C.F.R. § 100.3
(a).
Petitioner received a flu vaccine on September 18, 2017. The vaccine was administered
within the United States. Petitioner alleges that she suffered a left brachial plexopathy as a result
of receiving the flu vaccine and that she experienced the residual effects of this injury for more
than six months.
' Pursuant to the E-Government Act of 2002, see
44 U.S.C. § 3501
note (2012), because this opinion contains a
reasoned explanation for the action in this case, I intend to post it on the website of the United States Court of
Federal Claims. The Court’s website is at http:/Avww.uscfc.uscourts.gov/aggregator/sources/7. Before the opinion
is posted on the Court’s website, each party has 14 days to file a motion requesting redaction “of any information
furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or
confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly
unwarranted invasion of privacy.” Vaccine Rule 18(b). An objecting party must provide the Court with a proposed
redacted version of the opinion. /d. If neither party files a motion for redaction within 14 days, the opinion will
be posted on the Court’s website without any changes. [d.
> The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine
Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
, codified as amended, 42 U.S.C. §§ 300aa-1 to -34 (2012)
(Vaccine Act or the Act). All citations in this decision to individual sections of the Vaccine Act are to 42 U.S.C.A. §
300aa.
On January 5, 2021, respondent filed a stipulation providing that a decision should be
entered awarding compensation to petitioner. Stipulation (ECF No. 31). Respondent denies that
petitioner sustained a left brachial plexopathy following the flu vaccination and further denies
that the vaccine caused petitioner to suffer any other injury or her current condition. /d. at ] 6.
Maintaining their respective positions, the parties nevertheless now agree that the issues between
them shall be settled and that a decision should be entered awarding compensation according to
the terms of the stipulation attached hereto as Appendix A. /d. at {7.
The stipulation awards:
1) A lump sum of $46,258.78 in the form of a check payable to petitioner.
This amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a). I adopt the stipulation as the decision of the Court and hereby award
compensation in the amount and on the terms set forth therein. Accordingly, the Clerk of Court
SHALL ENTER JUDGMENT in accordance with the terms of the parties’ stipulation.*
IT ISSO ORDERED.
s/Thomas L. Gowen
Thomas L. Gowen
Special Master
3 Entry of judgment is expedited by each party’s filing notice renouncing the right to seek review. Vaccine Rule
11(a).
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
GENEVIEVE COSTABILE, )
)
Petitioner, )
) No. 19-578V
V. ) Special Master Gowen
) ECF
SECRETARY OF HEALTH AND HUMAN )
SERVICES, )
)
Respondent. )
)
STIPULATION
The parties hereby stipulate to the following matters:
1. Genevieve Costabile, petitioner, filed a petition for vaccine compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §§ 300aa-10 ef seq. (the “Vaccine
Program”). The petition seeks compensation for injuries allegedly related to petitioner’s receipt
of an influenza (“flu”) vaccine, which is contained in the Vaccine Injury Table (the “Table”),
42 C.F.R. § 100.3
(a).
2. Petitioner received a flu vaccine on September 18, 2017.
3. The vaccination was administered within the United States.
4. Petitioner alleges that she suffered a left brachial plexopathy as a result of receiving
the flu vaccine, and that she experienced the residual effects of this injury for more than six
months.
5. Petitioner represents that there has been no prior award or settlement of a civil action
for damages on her behalf as a result of her condition.
6. Respondent denies that petitioner sustained a left brachial plexopathy following the flu
vaccination, and further denies that the vaccine caused petitioner to suffer any other injury or her
current condition.
7. Maintaining their above-stated positions, the parties nevertheless now agree that the
issues between them shall be settled and that a decision should be entered awarding the
compensation described in paragraph 8 of this Stipulation.
8. As soon as practicable after an entry of judgment reflecting a decision consistent with
the terms of this Stipulation, and after petitioner has filed an election to receive compensation
pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue
the following vaccine compensation payment:
A lump sum of $46,258.78 in the form of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. §300aa-15(a).
9. As soon as practicable after the entry of judgment on entitlement in this case, and after
petitioner has filed both a proper and timely election to receive compensation pursuant to 42
U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings before
the special master to award reasonable attorneys’ fees and costs incurred in proceeding upon this
petition.
10. Petitioner and her attorney represent compensation to be provided pursuant to this
Stipulation is not for any items or services for which the Program is not primarily liable under 42
U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be expected to
be made under any State compensation programs, insurance policies, Federal or State health
benefits programs (other than Title XIX of the Social Security Act (
42 U.S.C. § 1396
et seq.)), or
by entities that provide health services on a pre-paid basis.
11, Payment made pursuant to paragraph 8 of this Stipulation and any amounts awarded
pursuant to paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-
15(i), subject to the availability of sufficient statutory funds.
12. The parties and their attorneys further agree and stipulate that, except for any award
for attorneys’ fees and litigation costs, and past unreimbursable expenses, the money provided
pursuant to this Stipulation will be used solely for petitioner’s benefit as contemplated by a strict
construction of 42 U.S.C. §§ 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. §§
300aa-15(g) and (h).
13. In return for the payments described in paragraphs 8 and 9, petitioner, in her
individual capacity, and on behalf of her heirs, executors, administrators, successors or assigns,
does forever irrevocably and unconditionally release, acquit and discharge the United States and
the Secretary of Health and Human Services from any and all actions or causes of action
(including agreements, judgments, claims, damages, loss of services, expenses and all demands
of whatever kind or nature) that have been brought, could have been brought, or could be timely
brought in the Court of Federal Claims, under the National Vaccine Injury Compensation
Program,
42 U.S.C. § 300
aa-10 ef seg., on account of, or in any way growing out of, any and all
known or unknown, suspected or unsuspected personal injuries to or death of petitioner resulting
from, or alleged to have resulted from, the flu vaccination administered on September 18, 2017,
as alleged by petitioner in a petition for vaccine compensation filed on or about April 17, 2019,
in the United States Court of Federal Claims as petition No. 19-578V.
14. If petitioner should die prior to entry of judgment, this agreement shall be voidable
upon proper notice to the Court on behalf of either or both of the parties.
15. Ifthe special master fails to issue a decision in complete conformity with the terms
of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a
decision that is in complete conformity with the terms of this Stipulation, then the parties’
settlement and this Stipulation shall be voidable at the sole discretion of either party.
16. This Stipulation expresses a full and complete negotiated settlement of liability and
damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the
parties hereto to make any payment or to do any act or thing other than is herein expressly stated
and clearly agreed to. The parties further agree and understand that the award described in this
Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or
amount of damages, and further, that a change in the nature of the injury or condition or in the
items of compensation sought, is not grounds to modify or revise this agreement.
17. This Stipulation shall not be construed as an admission by the United States of
America or the Secretary of Health and Human Services that the flu vaccine caused petitioner’s
left brachial plexopathy or any other injury or her current condition.
18. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s
heirs, executors, administrators, successors, and/or assigns.
END OF STIPULATION
Respectfully submitted,
PETITIONER: |
4,654,757 | 2021-01-26 21:02:43.600144+00 | null | https://www.courts.ca.gov/opinions/nonpub/C087877.PDF | Filed 1/26/21 Rybolt v. Riley CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COURTNEY E. RYBOLT, C087877
Respondent, (Super. Ct. No. 10FL05692)
v.
JAMES E. RILEY IV,
Appellant.
James Riley IV (appellant), appeals from a court order awarding attorney fee
sanctions under Family Code section 271 because it did not consider his ability to pay
when imposing the sanctions. Appellant’s claim is not supported by the record.
Courtney Rybolt (respondent) contends the trial court’s order was correct and appellant’s
appeal is frivolous. We affirm the trial court’s order and deny respondent’s request for
sanctions on appeal.
1
LEGAL AND FACTUAL BACKGROUND
On appeal, we must presume the trial court’s judgment is correct. (See Denham v.
Superior Court (1970)
2 Cal.3d 557
, 564.) Accordingly, we adopt all intendments and
inferences to affirm the judgment or order unless the record expressly contradicts them.
(See Brewer v. Simpson (1960)
53 Cal.2d 567
, 583.)
It is the burden of the party challenging a judgment on appeal to provide an
adequate record to assess error. (Ketchum v. Moses (2001)
24 Cal.4th 1122
, 1140-1141.)
The appellate record here does not include a reporter’s transcript. We must, therefore,
treat this as an appeal “ ‘on the judgment roll.’ ” (Kucker v. Kucker (2011)
192 Cal.App.4th 90
, 93.) Accordingly, we are required to conclusively presume the
evidence admitted at trial is ample to sustain the trial court’s findings; our review is
limited to determining whether any error “ ‘appears on the face of the record.’ ”1 (Id. at
p. 93; Nielsen v. Gibson (2009)
178 Cal.App.4th 324
, 324-325.)
Here, the limited record we have establishes that following a two-day evidentiary
hearing in July 2018, the trial court issued written findings and an order ruling on issues
related to custody and visitation of the parties’ minor child and respondent’s request for
attorney fees.
Relative to the order for attorney fees, the trial court found appellant “has
frustrated the policy of the law to promote settlement of litigation and, where possible
reduce the cost of litigation by encouraging cooperation between the parties; and [¶] . . .
[t]he amount of attorney’s fees does not impose an[] unreasonable financial burden on
[appellant].” The court then ordered appellant to pay to respondent $5,000 in attorney
1 Notably, the exhibits admitted at trial also are not included in the appellate record.
2
fees as sanctions under Family Code section 271.2 The court directed those fees to be
paid in monthly installments of $300 beginning August 15, 2018.
DISCUSSION
I
Attorney Fees
Appellant claims the court erred in ordering him to pay fees because the court
failed to hear argument on the issue of fees and “fail[ed] to consider evidence of parties’
income, assets, and liabilities.” He further claims the fees ordered “created an
unreasonable burden on [him].”
Our review is limited to determining whether any error “ ‘appears on the face of
the record.’ ” (Kucker v. Kucker, supra, 192 Cal.App.4th at p. 93; Nielsen v. Gibson,
supra, 178 Cal.App.4th at pp. 324-325.) And on the face of this record, we find no error.
II
Sanctions On Appeal
In her brief, respondent asks this court to impose sanctions on appellant for filing
another frivolous appeal. (See Rybolt v. Riley, supra, (C086056) [nonpub. opn.].) We
will not impose sanctions.
Sanctions may be imposed on appeal. (Code Civ. Proc., § 907; Cal. Rules of
Court, rule 8.276(a).) Sanctions are warranted “only when [the appeal] is prosecuted for
an improper motive -- to harass the respondent or delay the effect of an adverse judgment
-- or when it indisputably has no merit -- when any reasonable attorney would agree that
the appeal is totally and completely without merit.” (In re Marriage of Flaherty (1982)
31 Cal.3d 637
, 650.) “The two standards under Flaherty are often used together, with
2 The trial court also ordered appellant to pay Family Code section 271 sanctions in
November 2017, which was the subject of a previous appeal in this court. (Rybolt v.
Riley (Mar. 24, 2020, C086056) [nonpub. opn.].) We affirmed that order as well.
3
one providing evidence of the other.” (Doran v. Magan (1999)
76 Cal.App.4th 1287
,
1295.)
Here, the appeal is not totally and completely without merit, though it comes
close; however, the standard for issuing sanctions is high and, on this record, that
standard has not been met.
DISPOSITION
The trial court’s order is affirmed. Respondent’s request for sanctions on appeal is
denied. Respondent shall nevertheless recover costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(2).)
/s/
Robie, Acting P. J.
We concur:
/s/
Hoch, J.
/s/
Krause, J.
4 |
4,654,758 | 2021-01-26 21:02:44.09894+00 | null | https://www.courts.ca.gov/opinions/nonpub/B304453.PDF | Filed 1/26/21 P. v. Wilson CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B304453
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA057146-01)
v.
FRED WILSON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jesse I. Rodriguez, Judge. Affirmed.
Mark D. Lenenberg, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Charles S. Lee and Idan Ivri, Deputy
Attorneys General, for Plaintiff and Respondent.
_________________
Fred Wilson, convicted in 2004 on two counts of first degree
murder, appeals the postjudgment order summarily denying his
petition for resentencing under Penal Code section 1170.95.1
Although we agree with Wilson that the superior court erred in
relying on the true finding on firearm enhancement allegations to
conclude he was the actual killer of both victims and that a
felony-murder special-circumstance finding does not necessarily
preclude relief, these errors were harmless because Wilson was
ineligible for resentencing as a matter of law.
FACTUAL AND PROCEDURAL BACKGROUND
1. Wilson’s Murder Convictions
As detailed in our nonpublished opinion affirming Wilson’s
convictions on direct appeal (People v. Wilson (Nov. 16, 2005,
B178497), Wilson and David Jonathon Harris walked into a store
owned by Kyung Sun Kim (Sun) in late September 2001. Sun
worked at the store with his brother Kyung Min Kim (Min) and
another employee. After unsuccessfully bargaining over the price
of two bottles of alcohol, Wilson and Harris left the store. Wilson
and Harris returned to the store about 20 minutes later. Both
men were armed. Harris forcibly entered the cash register area
and shot Sun twice.
Sun’s wife, Jenny, who worked at an adjoining market, saw
Harris walking with a gun toward Barclay Street. After going
back into the store to push the alarm button, she returned to the
street and saw Wilson carrying a gun and a jar filled with money
taken from the liquor store. When Jenny went back inside to
push the alarm button again, she heard gun shots. Jenny ran to
1 Statutory references are to this code.
2
the alley and discovered Min lying on the ground. Both Sun and
Min died from multiple gunshot wounds.
Wilson was convicted following a jury trial on two counts of
first degree murder (§§ 187, subd. (a), 189, subd. (a); counts 1-2),
three counts of second degree robbery (§ 211; counts 3-5) and
one count of possession of a firearm by a felon (former § 12021,
subd. (a)(1); count 6). As to counts 1 and 2, the jury found true
the special-circumstance allegations that the murders had been
committed during the commission of a robbery (§ 190.2,
subd. (a)(17)(A)) and that there were multiple murders (§ 190.2,
subd. (a)(3)). As to counts 1 to 4, the jury also found true that
Wilson had personally and intentionally discharged a firearm
proximately causing death (§ 12022.53, subds. (b), (c) & (d)), and
as to count 5 that Wilson had personally and intentionally used
and discharged a firearm (§ 12022.53, subds. (b) & (c)).
In a bifurcated bench trial the trial court found Wilson had
previously been convicted of robbery, a serious or violent felony,
and had served one prior prison term within the meaning of
section 667.5, subdivision (b). The trial court sentenced Wilson to
an aggregate state prison term of two life terms without parole,
plus 81 years to life. We affirmed the conviction on appeal but
modified Wilson’s sentence to strike the one-year prior-prison
term enhancement imposed under section 667.5. (People v.
Wilson, supra, B178497.)
2. Wilson’s Petition for Resentencing
On November 22, 2019 Wilson, representing himself, filed a
petition for resentencing under section 1170.95 and requested the
court appoint counsel. On January 8, 2020 the superior court,
“[b]ased on a preliminary review of the Petition,” appointed the
Alternative Public Defender to represent Wilson, and ordered the
3
District Attorney to file a response within 60 days. Wilson’s
appointed counsel appeared on behalf of Wilson the following
day, and the superior court set a hearing for February 13, 2020.
However, without receiving any additional briefing or holding
oral argument, the superior court summarily denied the petition
on January 14, 2020.
In its order denying the petition the superior court stated,
“The court has received and reviewed a petition for recall and
resentencing pursuant to [section] 1170.95. The petition is
summarily denied because the petitioner is not entitled to relief
as a matter of law, for the following reason: [¶] The petitioner
was convicted of two murders. The court file reflects that the
petitioner was the actual killer. [¶] As to both murder counts 1
and 2, the jury found the petitioner ‘[personally] and
intentionally discharged a firearm, a handgun, which
proximately caused death within the meaning of [section]
12022.53[, subsection] (D) to be true. [¶] The jurors also found
the special circumstances of Penal Code section 190.2[,
subdivision] (a)(3) to be true as to counts 1 and 2.” The superior
court explained that in making its ruling it had relied on the
court file, the jury instructions that had been given at trial, and
the completed verdict forms.
DISCUSSION
1. Senate Bill No. 1437 and the Section 1170.95 Petition
Procedure
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015) (Senate Bill 1437), effective January 1, 2019,
significantly modified the law relating to accomplice liability for
murder. (People v. Gentile (2020)
10 Cal.5th 830
, 842-843
(Gentile) [discussing Senate Bill 1437].) In its uncodified findings
4
and declarations the Legislature stated, “It is necessary to amend
the felony murder rule and the natural and probable
consequences doctrine, as it relates to murder, to ensure that
murder liability is not imposed on a person who is not the actual
killer, did not act with the intent to kill, or was not a major
participant in the underlying felony who acted with reckless
indifference to human life.” (Stats. 2018, ch. 1015, § 1, subd. (f).)
The Legislature also declared, “Except as stated in subdivision (e)
of Section 189 of the Penal Code [relating to first degree felony
murder], a conviction for murder requires that a person act with
malice aforethought. A person’s culpability for murder must be
premised upon that person’s own actions and subjective mens
rea.” (Stats. 2018, ch. 1015, § 1, subd. (g).)
The Legislature accomplished its goal by adding
subdivision (a)(3) to section 188, and subdivision (e) to
section 189. (Gentile, supra, 10 Cal.5th at pp. 842-843.) New
section 188, subdivision (a)(3), eliminates the natural and
probable consequences doctrine as a basis for finding a defendant
guilty of murder by providing, “Except as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (See Gentile, at p. 839.) New section 189, subdivision (e),
limits the felony-murder exception to the malice requirement,
permitting a murder conviction for a death that occurred during
the commission of certain serious felonies only when other
specified circumstances relating to the defendant’s individual
culpability have been proved.2
2 Section 189, subdivision (e), provides with respect to a
participant in the perpetration or attempted perpetration of a
5
Senate Bill 1437 also authorized, through new
section 1170.95, an individual convicted of felony murder or
murder under a natural and probable consequences theory to
petition the sentencing court to vacate the conviction and be
resentenced on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill 1437’s changes to
the definition of the crime. (See Gentile, supra, 10 Cal.5th at
pp. 852-853.) The petition must include a declaration by the
petitioner that he or she is eligible for relief under
section 1170.95 and a statement whether the petitioner requests
the appointment of counsel. (§ 1170.95, subd. (b)(1); see People v.
Verdugo (2020)
44 Cal.App.5th 320
, 326-327 (Verdugo), review
granted Mar. 18, 2020, S260493.)
If the petition contains all required information,
section 1170.95, subdivision (c), prescribes a process for the court
to determine whether an order to show cause should issue: “The
court shall review the petition and determine if the petitioner has
made a prima facie showing that the petitioner falls within the
provisions of this section. If the petitioner has requested counsel,
the court shall appoint counsel to represent the petitioner. The
felony listed in section 189, subdivision (a), in which a death
occurs—that is, as to those crimes that provide the basis for the
charge of first degree felony murder—that an individual is liable
for murder “only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the actual
killer, but, with the intent to kill, aided, abetted, counseled,
commanded, induced, solicited, requested, or assisted the actual
killer in the commission of murder in the first degree. [¶] (3) The
person was a major participant in the underlying felony and
acted with reckless indifference to human life, as described in
subdivision (d) of Section 190.2.”
6
prosecutor shall file and serve a response . . . and the petitioner
may file and serve a reply. . . . If the petitioner makes a
prima facie showing that he or she is entitled to relief, the court
shall issue an order to show cause.” (See Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.)
As we held in Verdugo, supra, 44 Cal.App.5th at page 328,
review granted, this language authorizes the superior court to
proceed in two steps, “one made before any briefing to determine
whether the petitioner has made a prima facie showing he or she
falls within section 1170.95—that is, that the petitioner may be
eligible for relief—and a second after briefing by both sides to
determine whether the petitioner has made a prima facie
showing he or she is entitled to relief.” (Accord, People v. Soto
(2020)
51 Cal.App.5th 1043
, 1054, review granted Sept. 23, 2020,
S263939; People v. Drayton (2020)
47 Cal.App.5th 965
, 975;
People v. Torres (2020)
46 Cal.App.5th 1168
, 1177, review
granted June 24, 2020, S262011; but see People v. Cooper (2020)
54 Cal.App.5th 106
, 118, review granted Nov. 10, 2020, S264684
[section 1170.95, subdivision (c), contemplates only one prima
facie review before an order to show cause issues].)
Once the order to show cause issues, the court must hold a
hearing to determine whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts. (§ 1170.95, subd. (d)(1); see Verdugo, supra,
44 Cal.App.5th at p. 327, review granted.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
that the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020)
58 Cal.App.5th 227
, 230.)
The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
7
respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892
, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton, supra, 47 Cal.App.5th at p. 981;
People v. Lewis (2020)
43 Cal.App.5th 1128
, 1136, review granted
Mar. 18, 2020, S260598.)
2. Wilson’s Challenge to the Superior Court’s Authority To
Conduct a Prima Facie Review of His Eligibility for
Relief Lacks Merit
Arguing a petition for resentencing under section 1170.95
is a “special proceeding” and the jurisdiction of the superior court
is “limited by the terms of the conditions of the statute under
which it is authorized,” Wilson contends the superior court may
only review the allegations in the petition for their facial validity;
if they state facts that would entitle the petitioner to relief,
Wilson asserts, the court must appoint counsel (if requested) and
hold an evidentiary hearing. Wilson contends he met that “low
threshold” requirement by “checking the appropriate boxes” on
the form petition/declaration he completed and filed3 and that the
superior court erred by “stepping outside the four corners of
appellant’s petition to conduct an unauthorized investigation” to
deny the petition.
We rejected this argument in Verdugo, supra,
44 Cal.App.5th 320
, review granted.4 Verdugo held the superior
3 Wilson argues he supplemented the allegations “with
documentary evidence” showing that he was not Sun’s actual
killer, but no such evidence was attached to the form
petition/declaration filed in superior court.
4 The Supreme Court granted review in Verdugo (Mar. 18,
2020, S260493) and ordered briefing deferred pending its
disposition of People v. Lewis, supra,
43 Cal.App.5th 1128
, review
8
court, after determining the petition is facially sufficient, may
examine the readily available portions of the record of conviction
to determine whether the petitioner made a prima facie showing
that he or she could not be convicted of first or second degree
murder following the amendments to sections 188 and 189 and
thus is eligible for relief under section 1170.95. (Verdugo, at pp.
329-330, 332.) If the petitioner’s ineligibility for resentencing can
be established at this stage as a matter of law by the petition
itself and the record of conviction, the petition may be summarily
denied without the appointment of counsel. (Id. at pp. 330, 332-
333; see also People v. Perez (2020)
54 Cal.App.5th 896
, review
granted Dec. 9, 2020, S265254; People v. Lewis, supra,
43 Cal.App.5th at pp. 1139-1140, review granted; but see People
v. Cooper, supra,
54 Cal.App.5th 106
, review granted.)
3. The Superior Court Erred in Concluding Wilson Was
Sun’s Actual Killer
Although admitting he was the actual killer of Min
(count 2), Wilson contends the superior court erred in relying on
the jury’s true finding that he had personally discharged a
firearm causing death (§ 12022.53, subd. (d))5 as alleged in
granted, in which briefing and argument are limited to the
following issues: “(1) May superior courts consider the record of
conviction in determining whether a defendant has made a prima
facie showing of eligibility for relief under Penal Code section
1170.95? (2) When does the right to appointed counsel arise
under Penal Code section 1170.95, subdivision (c)?”
5 Section 12022.53, subdivision (d), states, “Notwithstanding
any other provision of law, any person who, in the commission of
a felony specified in subdivision (a), Section 246, or
subdivision (c) or (d) of Section 26100, personally and
intentionally discharges a firearm and proximately causes great
9
connection with the murder of Sun (count 1), to establish he was
also Sun’s actual killer and, thus, ineligible for resentencing on
that count. Wilson is correct, as the Attorney General concedes.6
The evidence established that Harris, not Wilson, shot and
killed Sun. As we explained in affirming imposition of this
firearm enhancement in Wilson’s direct appeal, “as to the murder
of Sun, the section 12022.53, subdivision (d), enhancement was
properly imposed because Wilson personally discharged his
firearm proximately causing the death of Min ‘in the commission
of’ Sun’s murder. . . . The number of enhancements imposed
under section 12022.53, subdivision (d), is not limited by the
number of actual injuries inflicted by Wilson’s personal discharge
of his firearm.” (People v. Wilson, supra, B178497; see People v.
Oates (2004)
32 Cal.4th 1048
, 1055-1056 [under section 12022.53,
subdivision (d), a defendant convicted of firing two shots at five
people could be sentenced to five 25-year-to-life enhancements
because the phrase “any person other than an accomplice”
includes “a person other than the victim of the qualifying felony”
who suffers death or great bodily injury].)
bodily injury, as defined in Section 12022.7, or death, to any
person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 25 years to life.”
6 The Attorney General acknowledges, “[T]his enhancement
does not always prove a defendant’s actual killer status under all
facts patterns, including here as to the murder of victim Sun.”
10
4. Wilson May Challenge the Special Circumstance Finding
in a Section 1170.95 Petition
Notwithstanding the superior court’s error, the Attorney
General contends Wilson’s petition under section 1170.95 was
properly denied because the jury found true the robbery-murder
special-circumstance allegation with respect to Sun’s murder,
which required the jury to find that Wilson had acted with
reckless indifference to human life and as a major participant in
the robbery, making him ineligible for relief.7 Although Wilson’s
conviction occurred before the Supreme Court clarified the
requirements for the felony-murder special-circumstance
allegation in People v. Banks (2015)
61 Cal.4th 788
(Banks) and
People v. Clark (2016)
63 Cal.4th 522
(Clark),8 the Attorney
General insists the jury’s finding should be given preclusive effect
in this proceeding and any challenge to the evidentiary support
for that finding must be made by petition for a writ of habeas
corpus.
7 Although the superior court did not rely on the special
circumstance finding to deny Wilson’s petition, the Attorney
General argues the order can be affirmed if the ruling was correct
on any lawful basis. (See People v. Smithey (1999)
20 Cal.4th 936
, 972 [“‘“‘[A] ruling or decision, itself correct in law, will not be
disturbed on appeal merely because given for a wrong reason. If
right upon any theory of the law applicable to the case, it must be
sustained regardless of the considerations which may have
moved the trial court to its conclusion’”’”].)
8 The Supreme Court in Banks, supra,
61 Cal.4th 788
identified factors courts should consider in determining whether
a defendant was a “major participant” under section 190.2,
subdivision (d): “What role did the defendant have in planning
the criminal enterprise that led to one or more deaths? What role
did the defendant have in supplying or using lethal weapons?
11
What awareness did the defendant have of particular dangers
posed by the nature of the crime, weapons used, or past
experience or conduct of the other participants? Was the
defendant present at the scene of the killing, in a position to
facilitate or prevent the actual murder, and did his or her own
actions or inaction play a particular role in the death? What did
the defendant do after lethal force was used?” (Banks, at p. 803,
fn. omitted.)
In Banks and Clark the Court explained that, to determine
whether the defendant acted with reckless indifference, courts
must “look to whether a defendant has ‘“knowingly engag[ed] in
criminal activities known to carry a grave risk of death.”’”
(Banks, supra, 61 Cal.4th at p. 801.) Specifically, “[t]he
defendant must be aware of and willingly involved in the violent
manner in which the particular offense is committed,
demonstrating reckless indifference to the significant risk of
death his or her actions create.” (Ibid.) As expressed in Clark,
“‘reckless indifference’ . . . encompasses a willingness to kill (or to
assist another in killing) to achieve a distinct aim, even if the
defendant does not specifically desire that death as the outcome
of his actions.” (Clark, supra, 63 Cal.4th at p. 617.)
To assist appellate review of the jury’s finding, Clark set
out a series of considerations relevant to determining whether a
defendant had acted with reckless indifference to human life.
(Clark, supra, 63 Cal.4th at pp. 618-622.) But “[j]ust as [the
court] said of the factors concerning major participant status in
Banks, ‘[n]o one of these considerations is necessary, nor is any
one of them necessarily sufficient’” to establish whether a
defendant acted with reckless indifference to human life. (Clark,
at p. 618, quoting Banks, supra, 61 Cal.4th at p. 803.)
Notably, Banks and Clark did not expressly require that
juries be instructed on those clarifications. Optional language
describing the Banks/Clark factors was added to the CALCRIM
instructions, but not mandatory language. (See CALCRIM
12
Although the Attorney General’s position has been upheld
in several court of appeal decisions, we reject it, as have other
courts of appeal, as ignoring the plain language of
section 1170.95, as well as the Legislature’s express intent in
enacting this remedial provision.
Enacted in 1990, section 190.2, subdivision (d), provides
that “every person, not the actual killer, who, with reckless
indifference to human life and as a major participant, aids, abets,
counsels, commands, induces, solicits, requests, or assists in the
commission of a felony enumerated in paragraph (17) of
subdivision (a) which results in the death of some person or
persons, and who is found guilty of murder in the first degree
therefor, shall be punished by death or imprisonment in the state
prison for life without the possibility of parole if a special
circumstance enumerated in paragraph (17) of subdivision (a) has
been found to be true under Section 190.4.” (See People v. Law
(2020)
48 Cal.App.5th 811
, 822, review granted July 8, 2020,
S262490 [“[s]ection 190.2, subdivision (d) was enacted in 1990 to
bring state law into conformity with prevailing Eighth
Amendment doctrine, as set out in the United States Supreme
Court’s decision Tison v. Arizona (1987)
481 U.S. 137
”].) Later,
“our Supreme Court’s opinions in Banks and Clark merely
clarified the meaning of section 190.2—Banks and Clark merely
No. 703.) Accordingly, a correctly instructed post-Banks/Clark
jury will not necessarily have received instructions that differ
from those given to a pre-Banks/Clark jury that made a major
participant/reckless indifference finding. The instructions—and
thus the factors, issues and questions the juries considered and
answered—might be exactly the same. The only necessary
difference is at the level of appellate review.
13
clarified the ‘major participant’ and ‘reckless indifference to
human life’ principles that existed when defendant’s conviction
became final.” (In re Miller (2017)
14 Cal.App.5th 960
, 977-978;
accord, In re Scoggins (2020)
9 Cal.5th 667
, 671; In re Ramirez
(2019)
32 Cal.App.5th 384
, 407; People v. Allison (2020)
55 Cal.App.5th 449
, 458.)
In People v. Galvan (2020)
52 Cal.App.5th 1134
(Galvan),
review granted October 14, 2020, S264284, the court of appeal
concluded that allowing a petition under section 1170.95 to
challenge the evidentiary support for the felony-murder special-
circumstance finding would give defendants convicted before
Banks and Clark “an enormous advantage” because “Defendants
convicted after the Supreme Court issued its decisions in Banks
and Clark would be required to challenge the sufficiency of the
evidence of the special circumstances finding on direct appeal,
where the People would need only to show that substantial
evidence supporting that finding. . . . But where, as here, a
defendant was convicted before Banks and Clark, if the defendant
could bring a collateral challenge under section 1170.95, the
prosecution would be required to prove the special circumstance
beyond a reasonable doubt [and] nothing in the language of
Senate Bill No. 1437 suggests that the Legislature intended
unequal treatment of such similarly situated defendants.”
(Galvan, at pp. 1142-1143; accord, People v. Murillo (2020)
54 Cal.App.5th 160
, 168, review granted Nov. 18, 2020, S264978
[“[b]y requiring a defendant to seek relief via habeas corpus, we
avoid creating a disparity in which similarly situated defendants’
cases are evaluated under different standards based solely on the
date of their convictions”]; People v. Gomez (2020)
52 Cal.App.5th 1
, 17, review granted Oct. 14, 2020, S264033.)
14
These decisions misperceive the nature of the
section 1170.95 petition, which challenges the murder conviction,
not the special circumstance finding. (People v. York (2020)
54 Cal.App.5th 250
, 260, review granted Nov. 18, 2020, S264954
[“section 1170.95 permits a petitioner to challenge a murder
conviction. If that challenge succeeds, then under
section 1170.95, subdivision (d)(3), the special circumstance is
vacated as a collateral consequence”].)
To be sure, section 189, subdivision (e)(3), as amended by
Senate Bill 1437, is now “the same as the standard for finding a
special circumstance under section 190.2[, subdivision] (d) as the
former provision expressly incorporates the latter.” (In re Taylor
(2019)
34 Cal.App.5th 543
, 561; accord, People v. York, supra,
54 Cal.App.5th at p. 258, review granted [“[t]he language of
section 189, subdivision (e)(3), as amended by Senate Bill 1437,
tracks the language of the special circumstance provision”].) But
“[w]hat permits a defendant convicted of felony murder to
challenge his or her murder conviction based on the contention
that he or she was not a major participant in the underlying
felony who acted with reckless indifference to human life, are the
changes Senate Bill 1437 made to sections 188 and 189, and in
particular the addition of section 189, subdivision (e)(3), not the
rulings in Banks and Clark.” (York, at p. 261.) Thus, Wilson’s
petition is made possible by the changes made to section 189, not
because of the clarifications made in Banks and Clark.
(§ 1170.95, subd. (a)(3) [allowing petition if “the petitioner could
not be convicted of first or second degree murder because of
changes to Section 188 or 189 made effective January 1, 2019”].)
We also disagree with the Attorney General to the extent
he argues the “plain language” of subdivision (f) of
15
section 1170.95 provides a defendant is only entitled to relief once
he or she “has previously sought and actually obtained
Banks/Clark relief on appellate or habeas review.”
Subdivision (f) states, “This section does not diminish or abrogate
any rights or remedies otherwise available to the petitioner.”
That language preserves a petitioner’s rights. It does not limit
them, as the Attorney General suggests. Nothing in
subdivision (f) indicates a defendant is required to obtain
Banks/Clark relief before filing a section 1170.95 petition. (See
People v. Scott (2014)
58 Cal.4th 1415
, 1421 [“‘“[w]hen the
language of a statute is clear, we need go no further”’”]; People v.
Murphy (2001)
25 Cal.4th 136
, 159 [the Legislature “knows how
to use language clearly expressing [its] intent”]; cf. People v.
Morales (2016)
63 Cal.4th 399
, 408 [finding that similar statutory
language under Proposition 47 “protects a person ‘from being
forced to choose between filing a petition for a recall of sentence
and pursuing other legal remedies to which they might be
entitled (e.g., petition for habeas corpus)’”].)
5. A Pre-Banks/Clark Special Circumstance Finding Alone
Does Not Preclude Relief Under Section 1170.95
The Attorney General alternatively argues, citing Galvan,
supra, 52 Cal.App.5th at page 1142, review granted, a
pre-Banks/Clark special-circumstance finding renders a
defendant ineligible for relief under section 1170.95 because “a
defendant who suffered a felony murder special circumstance
conviction before Senate Bill 1437 could still be convicted of
felony murder under the changes Senate Bill 1437 made to
section 189.” As the Attorney General explains, Wilson’s jury
was instructed that to convict him of the special circumstances
under section 190.2, subdivision (a)(17), it had to find either that
16
he was the actual killer (with or without intent to kill), that he
aided and abetted murder with the intent to kill, or that he aided
and abetted the felony that led to the victims’ deaths while acting
as a major participant with reckless indifference to human life,
the same element now found in section 189, subdivision (e)(3).
We agree with those recent court of appeal decisions,
including People v. Drayton, supra,
47 Cal.App.5th 965
and
People v. Torres, supra,
46 Cal.App.5th 1168
, review granted,
that have rejected this analysis and have held a special
circumstance finding pre-Banks/Clark is insufficient, without
more, to deny a section 1170.95 petition. Because the evidence
supporting such a special circumstance finding was not reviewed
under the standards set forth in Banks and Clark, the superior
court can determine a petitioner like Wilson is ineligible for relief
as a matter of law only after reviewing the available record of
conviction in light of the Banks and Clark factors. (See Verdugo,
supra, 44 Cal.App.5th at p. 330, review granted [“[t]he record of
conviction might also include other information that establishes
the petitioner is ineligible for relief as a matter of law because he
or she was convicted on a ground that remains valid
notwithstanding SB 1437’s amendments to sections 188 and
189”]; People v. Cornelius (2020)
44 Cal.App.5th 54
, 58, review
granted Mar. 18, 2020, S260410 [record must show defendant is
“indisputably ineligible for relief”].)
Finally, we disagree with the Attorney General’s argument
that section 1170.95, subdivision (d)(2), supports his position that
a pre-Banks/Clark felony-murder special-circumstance finding
necessarily has preclusive effect. That subdivision provides, “If
there was a prior finding by a court or jury that the petitioner did
not act with reckless indifference to human life or was not a
17
major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” The
Attorney General contends this provision means “the Legislature
understood that a defendant stands validly convicted of a
felony murder special circumstance until overturned under
Banks and/or Clark.” As other courts have observed, nothing in
the language of subdivision (d)(2) supports the Attorney
General’s argument. (See York, supra, 54 Cal.App.5th at pp. 260-
261, review granted [subdivision (d)(2) “does not state that a true
finding on a special circumstance allegation automatically
precludes relief. To the contrary, its language implies that there
is no such bar to eligibility”; “[i]f the Legislature had intended
such a finding automatically to preclude eligibility for relief, it
could have said so”]; People v. Smith (2020)
49 Cal.App.5th 85
,
94, review granted July 22, 2020, S262835 [“[t]here is no
corresponding provision indicating that a jury’s prior special
circumstance true finding, or a Court of Appeal’s affirmation
thereof, operates as an automatic statutory bar to eligibility”]; see
also People v. Murphy, supra, 25 Cal.4th at p. 159 [“the
Legislature has shown that when it wants a sentence calculated
without consideration of some circumstance, it knows how to use
language clearly expressing that intent”]; but see Galvan, supra,
52 Cal.App.5th at p. 1142, review granted [“[a]lthough Galvan is
asserting that he could not now be convicted of murder, the
alleged inability to obtain such a conviction is not ‘because of
changes’ made by Senate Bill No. 1437, but because of the
clarification of the requirements for the special circumstance
finding in Banks and Clark”].)
18
6. Wilson Is Ineligible for Relief as a Matter of Law
As discussed, in Verdugo we held to determine whether the
petitioner is eligible for relief (the first prima facie review), the
court must examine the readily available record of conviction,
which will at least include the complaint, information or
indictment filed against the petitioner; the verdict form or factual
basis documentation for a negotiated plea; and the abstract of
judgment. (Verdugo, supra, 44 Cal.App.5th at pp. 329-330,
review granted.) We also held, “A court of appeal opinion,
whether or not published, is part of the appellant’s record of
conviction.” (Id. at p. 333.)
In summarily denying Wilson’s petition the superior court
erred in concluding Wilson was the actual killer based on the
imposition of a section 12022.53, subdivision (d), enhancement on
count 1 and did not consider the significance of the jury’s felony-
murder special-circumstance finding, let alone evaluate that
finding under Banks and Clark. Nonetheless, the Attorney
General argues review of the record of conviction, including our
opinion on Wilson’s direct appeal, demonstrates Wilson is
ineligible for relief as a matter of law and the superior court’s
errors are harmless. (See People v. Law, supra, 48 Cal.App.5th at
p. 825, review granted [although the trial court erred by
concluding the special circumstance finding, on its own, rendered
petitioner ineligible for relief, the error was harmless because the
record demonstrates he qualified as a major participant who had
acted with reckless indifference to human life under Banks and
Clark]; see also In re Miller, supra, 14 Cal.App.5th at pp. 979-980
[defendant’s claim the evidence failed to support the robbery-
murder special circumstance does not require resolution of
disputed facts; “the facts are a given, they are just legally
19
insufficient under section 190.2 as elucidated in Banks and
Clark”].)
Wilson, in contrast, argues a remand is necessary so he can
present “new or additional evidence” in support of his claim he
was not a major participant who acted with reckless indifference
to human life during the killing of Sun. (See People v. Smith,
supra,
49 Cal.App.5th at p. 94 [“Section 1170.95 provides ‘the
petitioner may rely on the record of conviction or offer new or
additional evidence to meet [his] burden[ ].’ [Fn. & citation
omitted.] It is conceivable that [defendant] may be able to
provide evidence not presented at trial that would demonstrate
either that he was not a major participant in the robbery or did
not act with reckless indifference to human life. . . . [¶] We
therefore cannot conduct our own assessment of the trial
evidence to determine whether Smith was a major participant
and acted with reckless indifference to human life, or to use that
record evidence to inquire whether the deprivation of counsel was
harmless error”].)
We agree with the Attorney General that harmless error
review is appropriate on appeal of a denial of a section 1170.95
petition. The relief provided by this section is a legislative “act of
lenity” designed to give inmates the ameliorative benefit of
changes to applicable criminal laws. (People v. Gentile, supra,
10 Cal.5th at p. 853 [“[s]imilarly here, Senate Bill 1437 creates a
specific mechanism for retroactive application of its ameliorative
provisions”]; People v. Lopez (2019)
38 Cal.App.5th 1087
, 1114-
1115, review granted Nov. 13, 2019, S258175 [“‘[T]he retroactive
relief they are afforded by Senate Bill 1437 is not subject to Sixth
Amendment analysis. Rather, the Legislature’s changes
constituted an act of lenity that does not implicate defendants’
20
Sixth Amendment rights’”]; see People v. Edwards (2020)
48 Cal.App.5th 666
, 675, review granted July 8, 2020, S262481
[any error in not appointing counsel in a section 1170.95 petition
was harmless under Watson where the petitioner did not “fall
within the provisions of section 1170.95 as a matter of law”].) As
such, any error by the superior court would not provide a basis
for reversal unless the petitioner can show a reasonable
probability that he or she would have obtained a more favorable
result absent the error. (See People v. Daniel (2020)
57 Cal.App.5th 666
, 676 [“we hold that a defendant like Daniel
whose petition is denied before an order to show cause issues has
the burden of showing ‘it is reasonably probable that if [he or she]
had been afforded assistance of counsel his [or her] petition would
not have been summarily denied without an evidentiary
hearing’”]; see also People v. Epps (2001)
25 Cal.4th 19
, 29
[“because the error is purely one of state law, the Watson
harmless error test applies”]; People v. Johnson (2016)
1 Cal.App.5th 953
, 968 [Watson harmless error standard applied
to superior court’s error on a defendant’s resentencing petition
under Proposition 47].)
Among the factors the Supreme Court identified in Banks
and Clark to help determine whether a defendant can be found to
have been a major participant who acted with reckless
indifference to human life during a felony murder are his or her
awareness of the particular dangers posed by the nature of the
crime and the weapons used; the defendant’s physical presence at
the crime and his or her ability to facilitate or prevent the actual
murder; and the defendant’s actions after the use of lethal force.
(See Clark, supra, 63 Cal.4th at pp. 618-622; Banks, supra,
61 Cal.4th at p. 803.) Evaluating Wilson’s record of conviction,
21
particularly our opinion on his direct appeal, in light of these
considerations, it is beyond dispute Wilson was a major
participant in the robbery of Sun and acted with reckless
indifference to Sun’s life. Wilson entered the liquor store on
two occasions in concert with Harris, the actual shooter. Both
men were armed. Wilson, in possession of the stolen money
immediately following the robbery and murder of Sun, shot Min
in the alley to facilitate his and Harris’s escape. Thus, Wilson,
physically present at the scene, not only made no effort to
minimize the possibility of violence but also actively caused it to
escalate after he and Harris left the store.
In sum, the record of conviction establishes Wilson’s
ineligibility for relief under section 1170.95 as a matter of law.
Any error in the superior court’s evaluation of his petition was
harmless.
DISPOSITION
The order denying Wilson’s petition for resentencing is
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
22 |
4,638,803 | 2020-12-02 17:02:23.279114+00 | null | https://www.3dca.flcourts.org/pre_opinion_content_download/692478 | Third District Court of Appeal
State of Florida
Opinion filed December 2, 2020.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D19-1903
Lower Tribunal No. 16-199-A-M
________________
Tobias Bybee,
Appellant,
vs.
The State of Florida,
Appellee.
An appeal conducted pursuant to Anders v. California,
386 U.S. 738
(1967),
from the Circuit Court for Monroe County, Ruth L. Becker, Judge.
Tobias Bybee, in proper person.
Ashley Moody, Attorney General, and Michael W. Mervine, Assistant
Attorney General, for appellee.
Before SCALES, HENDON, and MILLER, JJ.
PER CURIAM.
Affirmed. |
4,513,374 | 2020-03-06 07:12:42.558973+00 | null | http://www.search.txcourts.gov/RetrieveDocument.aspx?DocId=49249&Index=%5c%5coca%2dpsql12%2ecourts%2estate%2etx%2eus%5cTamesIndexes%5ccoa01%5cOpinion | Opinion issued March 5, 2020.
In The
Court of Appeals
For The
First District of Texas
—————————————-———
NO. 01-19-00612-CV
——————————————
IN THE INTEREST OF A.A.H a/k/a A.H.
————–——————————
NO. 01-19-00748-CV
——————————–————
IN THE INTEREST OF A.M.H-F., A.L.F., A.C.J.H.-M., A.P.J.H.-M.
and A.C.H.-M.
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Case No. 2018-59296 & 2017-65076
MEMORANDUM OPINION
K.H. (“Mother”) and A.J.M. (“Father”) are appealing a final decree
terminating their parental rights to their infant daughter, A.H. (“Alexa”). Mother
also appeals a separate final decree terminating her parental rights to her five older
children. In several issues, Mother and Father both argue on appeal that there is
legally and factually insufficient evidence supporting the trial court’s findings that:
(1) they committed the requisite predicate acts under subsections 161.001(b)(1)(D),
(E), and (O) and (2) termination of their parental rights is in the children’s best
interests. See TEX. FAM. CODE §§ 161.001(b)(1)(D), (E), (O) & 161.001(b)(2). In
several additional issues, Mother contends that (1) there was legally and factually
insufficient evidence to support the appointment of the Department of Family and
Protective Services (“The Department”) as sole managing conservator, (2) she was
denied due process and equal protection, (3) the trial court lacked jurisdiction
because it did not commence trial within the statutorily required time, (4) she
received ineffective assistance of counsel, and (5) the trial court erred in denying
an intervention by a potential relative seeking placement in violation of the
Fostering Connections Act. In cause number 2018-59296, we affirm the
termination decree as to Father but reverse and remand as to Mother. In cause
number 2017-65076, we affirm the termination order.
I. BACKGROUND
Mother has six children. At the time of trial, the eldest was nine years old
and the youngest was an infant. Adam Fields, deceased, is the father of the two
2
eldest children, Anna and Bryan.1 Father is the father of the second oldest
daughter, Catherine. Johnathan Adams is the father of Deborah and Elijah. And,
Father is also the father of the infant, Alexa.
In July 2017, the family came to the Department’s attention when it received
a referral for medical neglect; the middle daughter, Catherine, had suffered severe
burns caused by boiling noodles, and Mother had not sought any medical treatment
for her. Mother took a drug test on July 17, 2017, in which she tested positive for
cocaine in an amount indicating that she was a chronic user. In October 2017,
when Mother continued to test positive for drugs, the Department was appointed
Temporary Managing Conservator of Anna, Bryan, Catherine, Deborah, and
Elijah.2 However, there is evidence that Mother concealed the children, and the
Department was unable to locate them and take custody of them until January 26,
2018.
The infant, Alexa, was born August 23, 2018. On August 29, 2018, the
Department received a referral alleging neglectful supervision of Alexa by Mother.
Father was in jail at the time of Alexa’s birth.
1
For purposes of this Opinion, we will refer to the children and parties by
pseudonyms. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8.
2
The Department’s case involving Mother and the five eldest children is trial court
number 2017-65076, appeal number 01-19-00748-CV. Father was also a party to
that suit, but he filed a relinquishment of parental rights as to his older daughter,
Catherine, in that case and does not appeal. The Department’s case involving
Alexa is trial court number 2018-59296, appeal number 01-19-00612-CV.
3
On August 30, 2018, Department investigator, Sheryl Ross, went to the
apartment where Mother was staying with her sister and fictive kin, whom she
referred to as her grandfather, but Mother said that the baby was not there. The
Department was not able to locate Alexa until September 11, 2018, when it was
named temporary managing conservator. Mother again tested positive for cocaine
on that date.
A. TRIAL PROCEEDINGS
1. April 9, 2019
Both cases—2017-65076 involving the older children and 2018-59296
involving the infant—were called to trial. Father was represented by Michael
Craig. The Department was represented by De’Anna Carlson. Mother’s attorney
in the 2018 case, Gary Smotherman, was not present and the record provides no
explanation for his absence. Mother’s attorney on the 2017 case, Jimmie Brown,
Jr., appeared on her behalf.
Father’s attorney called Father, who testified that he wished to execute a
Voluntary Relinquishment of Parental Rights as to Mother’s third child, Catherine.
Father testified that he understood the consequences of his action, that it was
irrevocable, and that it was in Catherine’s best interest. The trial court admitted the
document into evidence without objection. Father did not execute a relinquishment
as to Alexa.
4
The trial court then recessed the trial because Mother had alleged that her
children might be of Native American descent and that more time was needed to
comply with the protections provided by the Indian Child Welfare Act of 1978.
See 25 U.S.C. §§ 1901—1963 (2001).
2. June 25, 2019
a. The Motion to Withdraw
Trial resumed on June 25, 2019. Again, Gary Smotherman was not present
for Mother in the 2018 case and there is no explanation in the record for his
absence. Jimmie Brown, Jr. appeared on Mother’s behalf in the 2017 case, but he
filed a Motion to Withdraw, alleging “a pretty much unavoidable conflict of
interest.” After a brief discussion off the record, the trial court denied Brown’s
motion. Brown then stated on the record,
Based on what has occurred between my client and myself, Counsel
will be basically ineffective. And I think that will render this
proceeding pretty much constitutionally [infirm]. I don’t know of any
other way that I can proceed and not prejudice my client one way or
another. And I don’t know how I can do this and be faithful to the
rules that I’m sworn to uphold. So[,] all I can honestly tell the Court
is that I will be ineffective on the record.
b. Evidence
The Department proceeded by offering numerous exhibits, including the
children’s birth certificates, the parents’ family service plans, the parents’ drugs
tests, and the parents’ criminal records.
5
i. Bruce Jefferies’s testimony
The first witness was Bruce Jefferies, the owner of the National Screening
Centers, who testified about Mother’s and Father’s drug tests. The evidence
showed that Mother first tested positive for cocaine on July 17, 2017, at which
time her cocaine levels indicated daily “chronic” use. On February 6, 2018,
Mother tested positive for a low amount of ingested marihuana, a chronic “daily”
exposure to marihuana, methamphetamine, and cocaine at a chronic usage level.
This test was after the Department had removed Mother’s older children and
Mother was pregnant with Alexa at the time.
On February 27, 2018, Mother tested positive for cocaine, PCP, marihuana,
and codeine. Her cocaine level had dropped, her marihuana levels were low, but
she had new positive results for PCP and codeine. Jeffries explained that the
codeine could be explained by a prescription drug. Mother never produced or
claimed to have a prescription.
On July 17, 2018, Jefferies could not take a sample of hair from Mother’s
head because it had been shaved and she was wearing a weave.
On July 19, 2018, a little over a month before Alexa’s birth, mother tested
positive for cocaine.
On September 11, 2018, a few weeks after Alexa was born, Mother tested
positive for cocaine again.
6
On October 23, 2018, Mother tested positive for alcohol, methamphetamine,
cocaine, and PCP. Jefferies noted that Mother was still testifying positive, even
while she was participating in a substance-abuse program.
On November 27, 2018, Mother again tested positive for cocaine.
On February 20, 2019, just a few weeks before trial, mother tested positive
for a low amount of cocaine, daily exposure to marihuana, and a low amount of
marihuana ingestion.
Jeffries also testified about Mother’s drug tests by Texas Drug and Alcohol
Services, which showed that (1) Mother’s earliest drug test—July 17, 2017—
which was before any of her children were removed, showed chronic or daily use
of cocaine, (2) on August 31, 2018, just a few days after Alexa’s birth, mother
tested positive for cocaine, and (3) on October 10, 2018, Mother again tested
positive for cocaine.
Jefferies also testified about Father’s drug tests as follows:
On March 1, 2018, Father tested positive for PCP and marihuana, both by
exposure and ingestion.
On February 19, 2019, just a few weeks before trial, Father tested positive
for marihuana ingestion at a chronic usage level, codeine and morphine, PCP at a
chronic usage level, low levels of alcohol, and methamphetamine at a level
indicating usage more than once.
7
ii. John Fuegar’s testimony
The next witness was John Fuegar, the Department’s case worker in both the
2017 and 2018 cases. Fuegar testified that all six children were currently in foster
care. The three eldest children—Anna, Bryan, and Catherine—were in the same
foster care placement. All three were in therapy and were “doing well.” The
placement was not a potential adoptive placement.
The next two children—Deborah and Elijah—were placed in a foster home
together and they too were doing well and were attending daycare regularly. The
placement was not a potential adoptive placement.
Finally, the infant, Alexa, was placed in a foster home and was the only
sibling placed alone. Her foster mother arranged for her to visit her siblings.
Despite being exposed to illegal drugs in utero, Alexa had experienced no
developmental delays. Alexa’s foster mother was willing to adopt both her and
Catherine.
Fuegar testified about other potential placements for the children. He
testified that Adam Field’s family was willing to take Anna and Bryan, who were
their deceased relative’s children. Fuegar also testified that the Department had
identified one family who was willing to adopt all six children if the parents’ rights
were terminated. So, Fuegar concluded that the Department would be able to locate
permanent placements for all six of the children. Fuegar testified that the older
8
children currently had some hesitation about being reunited with their younger
siblings because they feared they might once again be “in charge” of the younger
children.
Regarding Catherine’s burns, which led to the initial Department referral,
Fuegar testified that the Mother explained that noodles had spilled on the child.
Upon initial investigation, the Department’s investigator noted that the burn
smelled and was possibly infected. The burn covered the child’s lower abdomen,
pelvic area, and upper legs. Mother did not seek any medical treatment for
Catherine, and her scarring is such that she will need skin grafts in the future.
Fuegar testified that the Department classified Mother’s failure to seek treatment
for Catherine as medical neglect. He also testified that Mother told the other
children that they could not take Catherine to the doctor because the doctor would
cut her legs off.
Fuegar testified that the Department was appointed temporary managing
conservator of the older children on October 31, 2017 but was not able to take
custody of them until January 2018. It was his belief that Mother was hiding the
children. When the children were removed in January 2018, the apartment in
which they were staying had no heat or water.
Mother was given, and signed, a family service plan at a February 6, 2018
hearing in the 2017 case. In accordance with the plan, Mother attended her
9
psychological assessment, at which the following recommendations were made:
participate in a substance abuse program, maintain sobriety for one year, comply
with random drug testing, attend counseling, attend parenting classes, maintain
financial support with employment, maintain housing, avoid illegal activities, and
maintain a drug free home. She was also diagnosed with personality disorder.
Before Fuegar completed his testimony, trial was recessed.
3. July 1, 2019
Trial resumed on July 1, 2019. The Department again noted on the record
that Mother’s attorney in the 2018 cause number, Gary Smotherman, had been
noticed, but did not appear. Again, no explanation for his absence is found in the
record.
Also appearing for the first time was, Danielle Green, pro se. Green had
filed an intervention in the proceedings, seeking to be considered as a placement
for Johnathan Adams’s children, Deborah and Elijah. Green also had children by
Adams, who were half-siblings with Deborah and Elijah. Mother indicated a
willingness to relinquish her parental rights to all six children to Green.
a. Evidence Continued
i. John Fuegar’s testimony
The Department resumed questioning of the caseworker, Fuegar. Fuegar
testified that Mother failed to complete her family service plan. Specifically, she
10
did not provide proof of stable housing, she did not refrain from illegal activities,
and she did not submit to random drug testing over ten times. She also failed to
comply with the recommendations of her psychological assessment that she by
remain sober for one year or submit to another substance abuse assessment.
Fuegar also testified that she never provided the Department with proof of
employment or stable housing. Although Mother successfully completed
outpatient treatment for drug abuse, she continued to test positive for drugs both
before, during, and after completion of the program. Fuegar concluded that
Mother’s continued drug use endangered her children by exposing them to criminal
conduct and preventing her from being available for the children. Specifically,
Fuegar stated, “[I]f the parent goes to jail, they’re not able to provide a stable
environment for the child. They’re not able to meet the basic needs of the child
because they are separated from the child.” Fuegar specifically noted that Mother
tested positive for drugs throughout her pregnancy with Alexa.
After learning that Alexa had been born, Fuegar visited Mother, but Mother
said the baby was not there. She claimed that the baby, who was just days old, was
with her sister, Leslie Hawkins, and Mother did not know where they were. The
Department finally located Alexa on September 11, 2018. Mother tested positive
for drugs that day, and the Department was made temporary managing conservator.
11
The Department was concerned that Mother continued to test positive for
drugs even after Alexa (and the other children) had been taken into the custody of
the Department. Fuegar stated, “It goes to the ability of the parent to provide the
child—to produce a safe environment for the child in the future.”
Mother was given a family plan on the 2018 case, which she also failed to
complete. She never took anger management classes. She never provided proof of
stable, ongoing employment, although there was evidence that she had obtained
her phlebotomist certification. She did not submit to random drug testing. She
continued to engage in criminal activity, and she missed court hearings in the case.
Mother did attend her supervised visits with Alexa and behaved
appropriately during them.
Regarding potential placements, Mother suggested her great-grandmother,
Pamela Gardner. The Department denied this placement because of concerns about
Gardner’s ability, both physically and financially, to care for six children. The
Department was also concerned that Gardner would allow Mother access to the
children. Mother also suggested her sister, Amber Hawkins, but the Department
ruled her out because she too had a criminal history as well as a history with the
Department. Mother’s brother, Elijah Hawkins, never returned the Department’s
calls when they sought to perform a home study on him. Mother’s uncle, Shawn
Hawkins, was also not considered because he had a criminal history. Finally,
12
mother suggested fictive kin, Ushanda Collins, who was not considered because
she was not willing to participate in the home-study process.
Fuegar noted that the Department had considered several family members of
the deceased father, Adam Fields, who were interested in having Anna and Bryan
placed with them and that a home study had been done but had not yet been
approved or denied.
Danielle Green, whose children share a father with Deborah and Elijah, was
also interested in having the children placed with her, even though she had never
met them. Fuegar testified that the Department would consider a placement with
Green.
Fuegar also testified about a potential placement for all six children. A
home study had been done, and the family had been approved as an adoptive
placement. The eldest child, Anna, had some trepidation about the potential
placement and “her main concern [was] being embarrassed about not looking like
her adoptive family.” She was also concerned about having to take care of the
other children if she were placed in a family with all six of them.
Finally, Fuegar testified that Alexa’s current foster mother was willing to
adopt both her and Catherine. Alexa’s foster mother would be open to maintaining
a relationship with the other siblings.
13
Regarding Father, Fuegar testified that Father was in jail from December
2017 until November 22, 2018. Thus, he was in jail when the Department took
custody of his oldest child, Catherine, in January 2018, and when Alexa was born
in August 2018. He did not see Alexa until she was six or seven months old.
Fuegar met with Father in November 2018, when he was released from jail,
at which time, Father was given a family service plan. Father did not complete his
family service plan.3 He did not go to a psychiatric assessment; he did not show up
for random drug testing; he continued to engage in criminal activity by using
drugs; and he did not provide proof of housing or employment. Father tested
positive for drugs in February 2019, shortly before trial commenced. Father
attended a drug assessment, but he did not comply with the recommendations from
that assessment. Specifically, he did not submit to random drug testing.
The Department was concerned about Father’s drug use and that his
continued engagement in criminal activity had led him to be absent from
Catherine’s life, as well as the life of his newborn child, Alexa.
Fuegar also expressed concerned about Father’s extensive criminal record,
noting that “[a] parent who is incarcerated is not able to protect their child.
They’re not able to ensure that their child’s needs are being met and it takes away
3
The family service plans for Father were the same in the 2017 case and the 2018
case.
14
all ability for them for being present in their child’s life and being a caregiver for
them.”
Fuegar noted that Father had made regular, appropriate, supervised visits
with Alexa, though he missed one appointment when he overslept. Though Father
would like to leave permanent managing conservatorship of Alexa to the agency or
foster parent, the Department wanted her to have permanency. Father had never
provided anything for Alexa other than a piece of hard candy that he brought to
one of the supervised visits.
Fuegar testified that the Department was also concerned about domestic
violence in the relationship between Mother and Father. Mother had reported that
she was the victim of domestic violence at Father’s hands. This violence was said
to have occurred before he went to jail in December 2017, and it happened on
more than one occasion.
Fuegar concluded that it would be in the best interest of all six children if
Mother’s and Father’s parental rights were terminated.
ii. Anabel Gonzalez’s testimony
Anabel Gonzalez testified that she was the Department’s investigator on the
2017 case involving the five older children. She received a referral for the family
on July 12, 2017, alleging drug use and medical neglect with respect to Catherine.
Gonzalez visited the family on July 14th, 2017, and saw Catherine’s burns, which
15
were healing by that time. She asked Mother to take a drug test, Mother did not do
so for a couple of weeks. She finally took one on July 17, 2017, which showed
chronic cocaine use.
During this initial investigation, Gonzalez contacted Father on July 13, 2017.
Father said that he was living in Beaumont with his father. He denied knowing
anything about the children, including that Catherine had been burned.
The Department filed its Original Petition in September 2017, and, at a
hearing of October 17, 2017, was granted emergency custody. The Department
was unable to locate the children to obtain custody until January 26, 2018.
Gonzalez testified that she went to the children’s’ schools and reached out to
family members, “but nobody had any information as to where they were[.]”
Gonzalez even went to Mother’s criminal court setting to try and find her, and the
judge in that case ordered Mother to produce the children.
The Department was concerned about placing the children with relatives
because there was concern that they were helping Mother hide the children.
Mother’s sister’s children were also missing, and the sister was eventually charged
with kidnapping.
When the children were finally located, Gonzalez stated that they were with
a babysitter, and the home did not have heat or running water, even though it was
January. Gonzalez testified that the apartment was filthy, there were clothes
16
everywhere, and there was “dog feces all over the place.” When they were located,
it was during school hours, and, even though two of the children were school-aged,
they were not in school.
iii. Danielle Green’s testimony
Green testified that two of her own children were siblings with Deborah and
Elijah because they shared the same father, Jonathan Adams. She testified that
Adams asked her whether she would “take care of the kids.” Green called Mother
and told her that she “wanted to step in and take temporary custody of [her]
children until [she] finish[ed] whatever [she] had going on with the court.”
Mother agreed and attempted to relinquish her children to Green. Green agreed to
take all six children. Green testified that, if the children were placed with her, she
“wouldn’t have a relationship with the mother per so. It would be more-so as visits
possibly.”
iv. Father’s testimony
Father’s counsel stated, “Despite my advice, Your Honor, I’m going to call
my client.” Father acknowledged that he had filed an affidavit of relinquishment
as to his older child, Catherine, but he testified that he did not want his parental
rights to Alexa to be terminated. He testified that he was working and making
$12.38 per hour and that he could pay support for the child. He testified that he
had been living with his mother and visiting Alexa regularly. He said that he loved
17
the child and that he was asking the trial court not to terminate his rights so that he
could pay support and continue to visit.
Father admitted that he committed domestic violence against Mother in the
past, before invoking his Fifth Amendment rights, and, on advice of counsel,
refusing to answer further questions on the issue. Father acknowledge spanking the
children, “[w]hen they did stuff that they wasn’t supposed to[.]”
Father testified that he knew that Mother had smoked “a little marijuana,”
but that the children were not with her at the time. He believed that Mother took
good care of the children; he did not know that they went without electricity and
water, stating, “I was incarcerated.” He also claimed that he was in jail when
Catherine was burned.
Father admitted using drugs as late as April 2019, which was just before
trial commenced. He said that his drug of choice was PCP. He said that he did not
see Catherine until several months after she was burned, at which time the wounds
were healing, so he did not take her to the doctor.
v. Mother’s testimony
Mother testified, but the questioning was limited to the identity of the eldest
children’s deceased father, Adam Fields.
18
B. THE TERMINATION DECREES
After trial, the trial court signed orders terminating Mother’s parental rights
to all six children based on the predicate acts in subsections (D) (endangering
conditions), (E) (endangering conduct), (N) (constructive abandonment), (O)
(failure to comply with court order), and (P) (using controlled substances after
completion of court-ordered substance abuse treatment) of Family Code section
161.001(b)(1). The trial court ordered termination of Father’s parental rights to
Alexa under subsections (D) (endangering conditions), (E) (endangering conduct),
and (O) (failure to comply with court order) of Family Code section 161.001(b)(1).
The trial court also found that termination of their parental rights was in the
children’s best interest under Family Code section 161.001(b)(2). This appeal
followed.
Because there are two termination orders, we first address the issues in 2018
case involving the Mother, the Father, and Alexa. Then, we will address the issues
in the 2017 case involving Mother and her five eldest children.
19
II. CAUSE NO. 2018-59296
A. SUFFICIENCY OF THE EVIDENCE4
In issue one through four of his appeal, Father argues that there is legally
and factually insufficient evidence supporting the trial court’s findings that he
committed the predicate acts under subsection 161.001(b)(1)(D), (E), and (O) and
that termination of his parental rights is in Alexa’s best interests. See TEX. FAM.
CODE §§ 161.001(b)(1)(D), (E), (O), 161.001(b)(2). In issues four, five, and six of
her appeals, Mother raises the same challenges.
1. Standard of Review
Protection of the best interest of the child is the primary focus of the
termination proceeding in the trial court and our appellate review. See In re A.V.,
113 S.W.3d 355
, 361 (Tex. 2003). A parent’s rights to the “companionship, care,
custody, and management” of his or her child is a constitutional interest “far more
precious than any property right.” Santosky v. Kramer,
455 U.S. 745
, 758–59
(1982); see In re M.S.,
115 S.W.3d 534
, 547 (Tex. 2003). Accordingly, we strictly
4
When a party presents multiple grounds for reversal, an appellate court should first
address those issues that would afford the party the greatest relief. Bradley’s
Elec., Inc. v. Cigna Lloyds Ins. Co.,
995 S.W.2d 675
, 677 (Tex. 1999). Because
legally insufficient evidence requires a rendition, we address the parties’
sufficiency issues first.
20
scrutinize termination proceedings and strictly construe the involuntary termination
statutes in favor of the parent. Holick v. Smith,
685 S.W.2d 18
, 20 (Tex. 1985).
In a case to terminate parental rights under Texas Family Code section
161.001, the Department must establish, by clear and convincing evidence, that (1)
the parent committed one or more of the enumerated acts or omissions
justifying termination and (2) termination is in the best interest of the child. TEX.
FAM. CODE § 161.001(b). Clear and convincing evidence is “the measure or degree
of proof that will produce in the mind of the trier of fact a firm belief or conviction
as to the truth of the allegations sought to be established.”
Id. § 101.007;
In re
J.F.C.,
96 S.W.3d 256
, 264 (Tex. 2002). Only one predicate finding under section
161.001(b)(1) is necessary to support a judgment of termination when there is also
a finding that termination is in the child’s best interest. In re
A.V., 113 S.W.3d at 362
.
When reviewing the legal sufficiency of the evidence in a case
involving termination of parental rights, we determine whether the evidence is
such that a factfinder could reasonably form a firm belief or conviction that there
existed grounds for termination under section 161.001(b)(1) and
that termination was in the best interest of the child. See TEX. FAM. CODE §
161.001(b)(1), (2); In re
J.F.C., 96 S.W.3d at 266
. In doing so, we examine all the
evidence in the light most favorable to the finding, assuming the “factfinder
21
resolved disputed facts in favor of its finding if a reasonable factfinder could do
so.”
Id. We must
also disregard all evidence that the factfinder could have
reasonably disbelieved or found to be incredible.
Id. When conducting
a factual sufficiency review, we consider and weigh all the
evidence including disputed or conflicting evidence. In re J.O.A.,
283 S.W.3d 336
,
345 (Tex. 2009). “If, in light of the entire record, the disputed evidence that a
reasonable factfinder could not have credited in favor of the finding is so
significant that a factfinder could not reasonably have formed a firm belief or
conviction, then the evidence is factually insufficient.”
Id. (quoting In
re
J.F.C., 96 S.W.3d at 266
). We give due deference to the factfinder’s findings, and we cannot
substitute our own judgment for that of the factfinder. In re H.R.M.,
209 S.W.3d 105
, 108 (Tex. 2006).
2. Sections 161.001(b)(1)(D), (E)
In his second issue, Father argues that there is legally and factually
insufficient evidence that he committed a predicate act under either subsection
161.001(b)(1)(D) or (E). In her fourth issue, Mother raises the same argument.
a. Applicable Law
Subsection 161.001(b)(1)(D) requires the trial court to find by clear and
convincing evidence that the parent has “knowingly placed or knowingly allowed
the child to remain in conditions or surroundings which endanger the physical or
22
emotional well-being of the child.” TEX. FAM. CODE § 161.001(b)(1)(D).
Subsection 161.001(b)(1)(E) requires the trial court to find by clear and convincing
evidence that the parent has “engaged in conduct or knowingly placed the child
with persons who engaged in conduct which endangers the physical or emotional
well-being of the child[.]”
Id. § 161.001(b)(1)(E).
Subsections (D) and (E) differ in
that (D) requires a showing that the environment or conditions in which the child is
placed endangered the child’s physical or emotional well-being, while subsection
(E) requires that the cause of the endangerment be the parent’s conduct alone, as
evidence by either the parent’s actions or omissions.
Id. § 161.001(b)(1)(D),
(E).
However, inappropriate, abusive, or unlawful conduct by persons who live in the
child’s home or with whom the child is compelled to associate on a regular basis in
his or her home is part of the “conditions or surroundings” of the child’s home
under section (D). In re B.R., 01-13-00023-CV,
2013 WL 3243391
, at *5 (Tex.
App.—Houston [1st Dist.] June 25, 2013, no pet.) (mem. op.). Thus, even though
subsection (D) focuses on the child’s living environment, “parental conduct may
produce an endangering environment.”
Id. “Because subsections
D and E both
concern endangerment and the evidence on each may overlap in some respects, we
address both of these predicate findings together.” In re S.R.,
452 S.W.3d 351
,
359–60 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
23
As used in section 161.001, “‘endanger’ means more than a threat of
metaphysical injury or the possible ill effects of a less-than-ideal family
environment.” Tex. Dep’t of Human Servs. v. Boyd,
727 S.W.2d 531
, 533 (Tex.
1987). In this context, endanger means to expose a child to loss or injury or to
jeopardize a child’s emotional or physical well-being. Id.; see In re M.C.,
917 S.W.2d 268
, 269 (Tex. 1996).
The Department does not need to establish that a parent intended to
endanger a child to support termination based on endangerment. See In re
M.C., 917 S.W.2d at 270
. Nor is it necessary to establish that the parent’s conduct was
directed at the child or caused actual harm; rather, it is sufficient if the parent’s
conduct endangers the child’s well-being. See
Boyd, 727 S.W.2d at 534
; Walker v.
Tex. Dep't of Fam. & Protective Servs.,
312 S.W.3d 608
, 616–17 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). Danger to a child’s well-being may be
inferred from parental misconduct.
Boyd, 727 S.W.2d at 533
. “As a general rule,
conduct that subjects a child to a life of uncertainty and instability endangers the
physical and emotional well-being of a child.” In re R.W.,
129 S.W.3d 732
, 739
(Tex. App.—Fort Worth 2004, pet. denied).
A parent’s past endangering conduct may support an inference that past
conduct may recur and further jeopardize the child’s present or future physical or
emotional well-being. See
id. 24 The
court’s endangerment analysis also includes consideration of a parent’s
criminal record and how repeated criminal activity adds instability to the child’s
life with repeated parental incarceration and separation. See
Boyd, 727 S.W.2d at 533
(stating that “imprisonment is certainly a factor to be considered by the trial
court on the issue of endangerment”). While “mere imprisonment will not,
standing alone, constitute engaging in conduct which endangers the emotional or
physical well-being of a child,” “if the evidence, including the imprisonment,
shows a course of conduct which has the effect of endangering the physical or
emotional well-being of the child, a finding [under Subsection] (E) is
supportable.”
Id. at 533–34;
see In re V.V.,
349 S.W.3d 548
, 555 (Tex. App.—
Houston [1st Dist.] 2010, pet. denied) (en banc) (affirming termination of
father’s parental rights for endangering conduct, noting his “extensive criminal
history,” repeated “criminal conduct leading to incarceration before and after the
child’s birth,” “life of crime” that included four felonies as well as “assault and
other crimes against the person,” “no effort to care for his daughter when not
incarcerated,” and “irresponsible choices that deprived this child of a parent”).
b. Analysis as to Father
Father argues that his criminal history and multiple incarcerations did not
endanger Alexa. He points out that all incarcerations occurred before Alexa’s birth
and that he had not incurred any new criminal charges since.
25
While endangerment often involves physical endangerment, the statute does
not require that conduct be directed at a child or that the child actually suffer
injury; rather, the specific danger to the child’s well-being may be inferred from
the parent’s misconduct alone.
Boyd, 727 S.W.2d at 533
; In re R.W.,
129 S.W.3d 732
, 738–39 (Tex. App.—Fort Worth 2004, pet. denied). A parent’s conduct that
subjects a child to a life of uncertainty and instability endangers the child’s
physical and emotional well-being. In re F.E.N.,
542 S.W.3d 752
, 764 (Tex.
App.—Houston [14th Dist.] 2018, no pet.); In re
A.L.H., 515 S.W.3d at 92
. Among
the types of actions or omissions constituting evidence meeting this standard are
criminal activity, convictions, and incarceration. See In re V.V.,
349 S.W.3d 548
,
554 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). Evidence of criminal
conduct, convictions, imprisonment, and their effects on a parent’s life and ability
to parent, may establish an endangering course of conduct. In re S.M.,
389 S.W.3d 483
, 492 (Tex. App.—El Paso 2012, no pet.). Routinely subjecting children to the
probability that they will be left alone because their parent is in jail endangers
children’s physical and emotional well-being. See
Walker, 312 S.W.3d at 617
.
Imprisonment alone is not an endangering course of conduct but is a fact properly
considered on the endangerment issue.
Boyd, 727 S.W.2d at 533
–34.
The record contains evidence of 20 criminal convictions, for which Father
has been sentenced to varying terms of confinement. His criminal record began in
26
2005; his most recent conviction was in 2018, a few months before the birth of his
youngest child, Alexa. The record shows that, not only was he confined when
Alexa was born and when Catherine and Alexa were, separately, removed from
Mother’s care, Father testified that he was confined when Catherine was burned.
Father has been sentenced to a period of confinement at least once, every year
since 2005, except for 2007, when he was already in jail, and in 2010, just after
completing a sentence that began in 2009. His convictions include theft, three
unlawful-weapons convictions, five drug-possession convictions, two evading-
arrest convictions, burglary, two trespass convictions, two criminal mischief
convictions, and two unauthorized-use-of-a-vehicle charges. 5
More importantly, however, Father has two convictions for assault of a
family member. His second family-violence conviction was against Mother, and,
at trial, Father admitted assaulting Mother. Domestic violence and a propensity for
violence are likewise evidence of endangerment. “Domestic violence, want of self-
control, and propensity for violence may be considered as evidence of
endangerment.” In re J.I.T.P.,
99 S.W.3d 841
, 845 (Tex. App.—Houston [14th
5
Father argues that his criminal convictions and incarcerations occurred before
Alexa was born. However, courts may look to evidence of parental conduct both
before and after a child’s birth and before and after a child’s removal from the
home to determine whether termination is appropriate. See In re J.O.A.,
283 S.W.3d 336
, 345 (Tex. 2009) (citing In re M.N.G.,
147 S.W.3d 521
, 536 (Tex.
App.—Fort Worth 2004, pet. denied)); Walker v. Tex. Dep’t of Fam. And
Protective Servs.,
312 S.W.3d 608
, 617 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied) (explaining that relevant conduct may occur either before or after
child’s removal from home).
27
Dist.] 2003, no pet.); accord
S.R., 452 S.W.3d at 361
. Violence does not have to be
directed toward the child or result in a final conviction—“Texas courts routinely
consider evidence of parent-on-parent physical abuse in termination cases without
specifically requiring evidence that the conduct resulted in a criminal conviction.”
In re
V.V., 349 S.W.3d at 556
. “Domestic violence, want of self-control, and
propensity for violence may be considered as evidence of endangerment.” In re
J.I.T.P., 99 S.W.3d at 845
; accord
S.R., 452 S.W.3d at 361
. Parents’ criminal
conduct that exposes them to the possibility of incarceration can negatively impact
a child’s living environment and emotional well-being. In re S.M.L,
171 S.W.3d 472
, 479 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
Viewing the evidence in the light most favorable to the trial court’s finding,
particularly Father’s lengthy criminal history, repeated incarcerations, and
domestic-violence convictions, we conclude that the trial court could have formed
a firm belief or conviction that Father had knowingly allowed Alexa to remain in
conditions which endangered her physical or emotional well-being and that he had
engaged in conduct which endangered Alexa’s physical or emotional well-being in
violation of subsections 161.001(b)(1)(D), and (E). See In re
J.O.A., 283 S.W.3d at 344
(citing In re
J.F.C., 96 S.W.3d at 266
). Further, in view of the entire record,
we conclude that the disputed evidence is not so significant as to prevent the trial
court from forming a firm belief or conviction that Father had knowingly allowed
28
Alexa to remain in conditions which endangered her physical or emotional well-
being and that he had engaged in conduct which endangered Alexa’s physical or
emotional well-being in violation of subsections 161.001(b)(1)(D) and (E). See In
re
J.O.A., 283 S.W.3d at 345
(citing In re
J.F.C., 96 S.W.3d at 266
).
Because we conclude that the evidence is legally and factually sufficient to
support the trial court’s findings under sections 161.001(b)(1)(D) and (E), we do
not address Father’s arguments that the evidence is legally and factually
insufficient to support the trial court’s findings under subsection (O). See In re
P.W.,
579 S.W.3d 713
, 728 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
c. Analysis as to Mother
Mother argues that the evidence is legally and factually insufficient to
supports the trial court’s finding that she committed a predicate act under
subsections (D), or (E), or (O) of Article 151.001(b)(1).6
6
We note that the trial court’s judgment also found that Mother committed
predicate acts under subsections (N) and (P), and Mother does not challenge those
findings on appeal. Usually, an appellant must challenge all independent bases or
grounds that fully support a judgment or appealable order. See Blackstone Med.,
Inc. v. Phoenix Surgicals, L.L.C.,
470 S.W.3d 636
, 650 (Tex. App.—Dallas 2015,
no pet.); Britton v. Tex. Dep’t of Criminal Justice,
95 S.W.3d 676
, 681 (Tex.
App.—Houston [1st Dist.] 2002, no pet.); see also In re N.L.D.,
412 S.W.3d 810
,
818 (Tex. App.—Texarkana 2013, no pet.) (holding that when parent failed to
challenge on appeal ground for termination of parental rights, court could affirm
on unchallenged ground without examining sufficiency of evidence to support
challenged grounds). However, when raised on appeal, appellate courts must
review challenges to subsections (D) and (E) because of the potential collateral
consequences of a finding under those subsections. See In re N.G.,
577 S.W.3d 230
, 235 (Tex. 2019).
29
A parent’s continuing substance abuse can qualify as a voluntary, deliberate,
and conscious course of conduct endangering the child’s well-being. In re
J.O.A., 283 S.W.3d at 345
; see In re L.G.R.,
498 S.W.3d 195
, 204 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied). A parent’s drug use exposes the child to the
possibility the parent may be impaired or imprisoned and, thus, be unable to take
care of the child.
Walker, 312 S.W.3d at 617
–18. The fact finder may give “great
weight” to the “significant factor” of drug-related conduct.
L.G.R., 498 S.W.3d at 204
.
A mother’s use of drugs during pregnancy may be conduct that endangers
the child. In re A.S.,
261 S.W.3d 76
, 86 (Tex. App.—Houston [14th Dist.] 2008,
pet. denied); In re J.T.G.,
121 S.W.3d 117
, 125 (Tex. App.—Fort Worth 2003, no
pet.). However, termination is not automatic in such a case. See
A.S., 261 S.W.3d at 86
(“While unquestionably, an exercise of poor judgment, Veronica’s use of
marijuana on a single occasion, standing alone, does not rise to the level of a
conscious course of conduct.”).
This Court and others have held that a parent’s decision to engage in illegal
drug use during the pendency of a termination suit, when the parent is at risk of
losing the child, may support a finding to a clear and convincing degree that the
parent engaged in conduct that endangered the child’s physical or emotional well-
being. See In re A.M.,
495 S.W.3d 573
, 580 (Tex. App.—Houston [1st Dist.] 2016,
30
pet. denied); In re A.H.A., No. 14-12-00022-CV,
2012 WL 1474414
, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.); In re M.E.-M.N.,
342 S.W.3d 254
, 263 (Tex. App.—Fort Worth 2011, pet. denied).
Here, Mother has demonstrated no ability to become and remain consistently
drug-free for any period of time. Every drug test she took from the time the
Department became involved with her older children up until the time of trial was
positive for illegal drugs.
The drug test evidence in this case showed that Mother first tested positive
for illegal substances on July 7, 2017, three months before the Department sought
to remove the children from her care. At the time, the test showed that she was a
chronic cocaine user, which meant that she used cocaine daily. On February 6,
2018, mother tested positive for marihuana at a low level, methamphetamine,
cocaine at a level indicating chronic usage, PCP at a level indicating usage
approximately 3 times per week, plus chronic exposure to marihuana as well as
low usage. On March 27, 2018, Mother again tested positive for cocaine, PCP,
marihuana, and codeine. There was testimony that, because the levels of drugs
were lower in this test than the previous test and the two tests were taken so close
together, the results of the March 2018 might be showing residual usage. Also, the
codeine could be explained by a prescription, but there is no prescription or
evidence thereof in evidence. On July 10, 2018, just six weeks before Alexa was
31
born, Mother tested positive once again for cocaine. On September 11, 2018,
shortly after Alexa’s birth, Mother again tested positive for cocaine. On October
23, 2018, Mother tested positive for a low amount of alcohol, methamphetamine,
cocaine, and PCP. This test indicated that sometime between July 2018 and
October 2018, Mother again started using methamphetamine and PCP, which had
not been detected in her system since February of that year. On November 27,
2018, Mother tested positive for cocaine, and, on February 20, 2019, she tested
positive for cocaine, as well as daily exposure and a low ingestion of marihuana.
Mother’s continued, consistent use of drugs, even after the Department filed
suit to terminate her parental rights, is evidence of endangerment and that living in
her household created an endangering condition. See In re
A.M., 495 S.W.3d at 580
.
Additionally, neglect of a child’s medical needs endangers the child. Smith
v. Tex. Dep’t of Fam. And Protective Servs., No. 01-09-00173-CV.
2009 WL 4359267
, at *7 (Tex. App.—Houston [1st Dist.] Dec. 3, 2009, no pet.); In re
T.M.T., No. 14-18-00442-CV,
2018 WL 6053667
, at *11 (Tex. App.—Houston
[14th Dist.] Nov. 20, 2018, no pet.) (mem. op.). A parent’s failure to provide
appropriate medical care for a child may constitute endangering conduct. See In re
H.M.O.L., No. 01-17-00775-CV,
2018 WL 1659981
, at *13 (Tex. App.—Houston
[1st Dist.] Apr. 6, 2018, pet. denied) (mem. op.).
32
Here, there was evidence that, after Catherine was burned by spilled
noodles, Mother refused to seek medical care for her. She told her other children
that, if she did so, the doctor would cut off Catherine’s legs. The resulting scars on
Catherine’s torso, groin, and upper legs were “knotted” and “snarled” and would
require skin grafts in the future. Even though the child Mother medically
neglected is not Alexa, the child involved in this proceeding, it is not necessary
that the conduct be directed at the child that is the subject of the suit or that that the
child actually suffer injury. See
Boyd, 727 S.W.2d at 533
.
Viewing the evidence in the light most favorable to the trial court’s finding,
particularly Mother’s repeated failure of drug tests and medical neglect of
Catherine, we conclude that the trial court could have formed a firm belief or
conviction that Mother had knowingly allowed Alexa to remain in conditions
which endangered her physical or emotional well-being and that she had engaged
in conduct which endangered Alexa’s physical or emotional well-being in violation
of subsections 161.001(b)(1)(D), (E). See In re
J.O.A., 283 S.W.3d at 344
(citing
In re
J.F.C., 96 S.W.3d at 266
). Further, in view of the entire record, we conclude
that the disputed evidence is not so significant as to prevent the trial court from
forming a firm belief or conviction that Mother had knowingly allowed Alexa to
remain in conditions which endangered her physical or emotional well-being, and
that she had engaged in conduct which endangered Alexa’s physical or emotional
33
well-being in violation of subsections 161.001(b)(1)(D) and (E). See In re
J.O.A., 283 S.W.3d at 345
(citing In re
J.F.C., 96 S.W.3d at 266
).
Because we conclude that the evidence is legally and factually sufficient to
support the trial court’s findings under subsections (D) and (E), we do not address
Mother’s arguments that the evidence is legally and factually insufficient to
support the trial court’s findings under subsection (O). See In re
P.W., 579 S.W.3d at 728
.
3. Best Interest
In his fourth issue, Father argues that the evidence is legally and factually
insufficient to support the trial court’s finding that termination of
his parental rights is in Alexa’s best interests. In her fifth and six issues, Mother
raises the same claims.
a. Applicable Law
There is a strong presumption that the best interest of a child is served by
keeping the child with a parent. In re R.R.,
209 S.W.3d 112
, 116 (Tex. 2006); In re
D.R.A.,
374 S.W.3d 528
, 533 (Tex. App.—Houston [14th Dist.] 2012, no pet.).
Prompt and permanent placement of the child in a safe environment is also
presumed to be in the child’s best interest. TEX. FAM. CODE § 263.307(a).
Courts may consider the following non-exclusive factors in reviewing the
sufficiency of the evidence to support the best interest finding: the desires of the
34
child; the present and future physical and emotional needs of the child; the present
and future emotional and physical danger to the child; the parental abilities of the
persons seeking custody; the programs available to assist those persons seeking
custody in promoting the best interest of the child; the plans for the child by the
individuals or agency seeking custody; the stability of the home or proposed
placement; acts or omissions of the parent which may indicate the existing parent-
child relationship is not appropriate; and any excuse for the parent’s acts or
omissions. Holley v. Adams,
544 S.W.2d 367
, 371–72 (Tex. 1976). This list of
factors is not exhaustive, however, and evidence is not required on all the factors to
support a finding that terminating a parent’s rights is in the child’s best
interest. Id.; In re
D.R.A., 374 S.W.3d at 533
.
In addition, the Texas Family Code sets out factors to be considered in
evaluating the parent’s willingness and ability to provide the child with a safe
environment, including: the child’s age and physical and mental vulnerabilities;
whether there is a history of abusive or assaultive conduct by the child’s family or
others who have access to the child’s home; the willingness and ability of the
child’s family to seek out, accept, and complete counseling services and to
cooperate with and facilitate an appropriate agency’s close supervision; the
willingness and ability of the child’s family to effect positive environmental and
personal changes within a reasonable period of time; whether the child’s family
35
demonstrates adequate parenting skills, including providing the child with
minimally adequate health and nutritional care, a safe physical home environment,
and an understanding of the child’s needs and capabilities; and whether an
adequate social support system consisting of an extended family and friends is
available to the child. TEX. FAM. CODE § 263.307(b); In re
R.R., 209 S.W.3d at 116
.
Courts may consider circumstantial evidence, subjective factors, and the
totality of the evidence as well as the direct evidence when conducting the best
interest analysis. See In re E.D.,
419 S.W.3d 615
, 620 (Tex. App.—San Antonio
2013, pet. denied). Evidence supporting termination under one of the predicate
grounds listed in section 161.001(b)(1) can also be considered in support of a
finding that termination is in the best interest of the child. See In re
C.H., 89 S.W.3d at 28
(holding same evidence may be probative of both section
161.001(b)(1) grounds and best interest). A parent’s past conduct is probative of
his future conduct when evaluating the child’s best interest. See In re O.N.H.,
401 S.W.3d 681
, 684 (Tex. App.—San Antonio 2013, no pet.); see also
Jordan, 325 S.W.3d at 724
. A factfinder may also infer that past conduct endangering the well-
being of a child may recur in the future if the child is returned to the parent when
assessing the best interest of the child. In re D.M.,
452 S.W.3d 462
, 471 (Tex.
36
App.—San Antonio 2014, no pet.) (citing In re B.K.D.,
131 S.W.3d 10
, 17 (Tex.
App.—Fort Worth 2004, pet. denied)).
b. Analysis as to Father
Regarding the child’s desires, Alexa, an infant at the time of trial, was too
young to express her desires. However, she had been placed in a foster home, in
which she was doing well, and her needs were being met. In fact, her foster
placement was a potential adoptive placement. The trial court could infer from this
evidence that the child wanted to remain with her foster family. See In re J.D.,
436 S.W.3d 105
, 118 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (“When children
are too young to express their desires, the fact finder may consider that the children
have bonded with the foster family, are well-cared for by them, and have spent
minimal time with a parent.”).
In contrast, Father was confined in jail when Alexa was born in August
2018, and he was not released until November of 2018. Father did not meet Alexa
until February or March of 2019. Even though there was evidence that Father
visited Alexa regularly thereafter and had “started to build a bond” with her, the
trial court could have concluded that this newly developed bond was not
outweighed by the consistent, positive presence that Alexa’s foster family
provided.
37
Regarding Alexa’s emotional and physical needs now and in the future, and
the possible emotional and physical danger to her now and in the future, the trial
court had evidence of Father’s repeated criminal activity and resulting
incarcerations. See generally In re
O.N.H., 401 S.W.3d at 684
(stating that past
conduct is probative of future conduct when evaluating child’s best interest). The
trial court could have concluded that Father’s pattern of repeated incarcerations
shows that he “was not willing and able to provide the child with a safe
environment—a primary consideration in determining the child’s best interest.”
See In re A.C.,
394 S.W.3d 633
, 642 (Tex. App.—Houston [1st Dist.] 2012, no
pet.). Indeed, the evidence shows that Father was incarcerated both when his
eldest daughter, Catherine, was burned and suffered medical neglect by Mother,
and when Alexa was born. There was also evidence that Father used drugs, even
when his parental rights were in jeopardy. Additionally, Father had admitted that
termination of parental rights was in the best interest of his older daughter,
Catherine, and he voluntarily relinquished his parental rights to her. Father
admitted to, and was convicted of, family violence against Mother. See
Walker, 312 S.W.3d at 619
(considering father’s past violence in best-interest assessment
and noting that evidence of endangering conduct under Subsection (E) is also
probative of best-interest analysis). Finally, Father continued using illegal drugs,
even just a short time before a trial was set to determine his parental rights.
38
Regarding parental abilities, Father had shown no parental abilities. He was
never a stable factor in either of his children’s lives. And, although he indicated
that he would like to pay child support for Alexa, there is nothing in the record to
show that he had ever done so. Father also admitted that termination would be in
the best interest of Catherine, thus indicating his unwillingness to be a parent to at
least one of his children. Father had also not completed the parenting classes
required by his family service plan. In contrast, Alexa was happy, healthy, and
thriving in her foster home, and her foster mother hoped to adopt her, and perhaps
Catherine, too.
Regarding plans for the child, Father offered none other than his willingness
to visit Alexa and pay child support. He did not provide evidence of a home or a
plan to provide Alexa with a home. In contrast, the Department testified about
several potential permanent homes for Alexa. First, the foster mother was willing
to adopt Alexa. Second, Danielle Green, whose children shared a father with two
of Alexa’s siblings, testified that she was willing to consider adopting all six
children. And, finally, the Department had located a family that was willing to
adopt all six siblings if the parents’ parental rights were terminated. The trial court
could infer from this evidence that the Department’s plans were more likely to
ultimately to provide Alexa with a stable, safe, and permanent home, which is a
39
paramount consideration in a court’s best-interest determination. See TEX. FAM.
CODE § 263.307(a); see also In re
K.C., 219 S.W.3d at 931
.
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction
that termination of Father’s parental rights is in Alexa’s best interests. See In re
J.O.A., 283 S.W.3d at 344
(citing In re
J.F.C., 96 S.W.3d at 266
). Further, in view
of the entire record, we conclude that the disputed evidence is not so significant as
to prevent the trial court from forming a firm belief or conviction
that termination of Fathers parental rights is in Alexa’s best interests. See In re
J.O.A., 283 S.W.3d at 345
(citing In re
J.F.C., 96 S.W.3d at 266
). Accordingly, we
hold that legally and factually sufficient evidence supports the trial court’s best
interest finding.
We overrule Father’s fourth issue.
c. Analysis as to Mother
Regarding the child’s desires, Alexa, an infant at the time of trial, was too
young to express her desires. However, she had been placed in a foster home, in
which she was doing well, and her needs were being met. In fact, her foster
placement was a potential adoptive placement. The trial court could infer from this
evidence that the child wanted to remain with her foster family. See In re
J.D., 436 S.W.3d at 118
(“When children are too young to express their desires, the fact
40
finder may consider that the children have bonded with the foster family, are well-
cared for by them, and have spent minimal time with a parent.”).
In contrast, Mother lost custody of her older children before Alexa was born
and Alexa, too, was removed shortly after her birth. Although Mother had bonded
with her older children before they were removed and continued to visit Alexa
even after she was removed, the trial court could have concluded that her bond
with Alexa was lacking because Alexa was removed from her custody as an infant.
Regarding Alexa’s emotional and physical needs now and in the future and
the possible emotional and physical danger to her now and in the future, the trial
court had evidence of Mother’s continuing drug abuse. See generally In re
O.N.H., 401 S.W.3d at 684
(stating that past conduct is probative of future conduct when
evaluating child's best interest). The trial court could have concluded that
Mother’s pattern of drug abuse shows that she “was not willing and able to provide
the child with a safe environment—a primary consideration in determining the
child’s best interest.” See In re
A.C., 394 S.W.3d at 642
. The evidence shows that
Mother tested positive for illegal drugs before her children were removed from her
care and thatshe continued to test positive for drugs up to the time of trial, even
when her parental rights were in jeopardy. Indeed, she used drugs while pregnant
with Alexa. Mother also demonstrated an inability to provide for her children’s
41
emotional and physical needs, and indeed, subjected Catherine to danger when she
refused to seek medical treatment for Catherine’s burns.
Regarding parental abilities, Mother’s parental skills were demonstrably
lacking, as indicated by her refusal to seek medical care for her severely burned
child. Mother, in fact, was willing to turn over her parental rights to Danielle
Green, a woman whom she did not know, before her children were removed. There
was also evidence that Mother hid the children from the Department, keeping the
eldest ones out of school, even though they were school-aged. The trial court could
also have concluded that Mother’s parenting skills were compromised by her
continuing drug abuse. There was evidence that she left the children with a
babysitter in an apartment with no heat or water in January. Because Mother’s
eldest children were concerned that, if placed in a home with their siblings, they
would become caregivers again, the trial court could have concluded that, in the
past, Mother had left the younger children in the care of the older children.
Regarding plans for the child, Mother offered none, though there was
evidence that she would consider relinquishing custody of all six children to
Danielle Green, a woman whom she did not know. Mother did not provide
evidence of a home or a plan to provide Alexa or the other children with a home.
In contrast, the Department testified about several potential permanent homes for
Alexa. First, the foster mother was willing to adopt Alexa. Second, Danielle
42
Green, whose children shared a father with two of Alexa’s siblings, testified that
she was willing to consider adopting all six children. And, finally, the Department
had located a family that was willing to adopt all six siblings if the parents’
parental rights were terminated. The trial court could infer from this evidence that
the Department’s plans were more likely to ultimately provide the children with a
stable, safe, and permanent home, which is a paramount consideration in a court’s
best-interest determination. See TEX. FAM. CODE § 263.307(a); see also In re
K.C., 219 S.W.3d at 931
.
Viewing the evidence in the light most favorable to the trial court’s finding,
we conclude that the trial court could have formed a firm belief or conviction that
termination of Mother’s parental rights is in Alexa’s best interests. See In re
J.O.A., 283 S.W.3d at 344
(citing In re
J.F.C., 96 S.W.3d at 266
). Further, in view
of the entire record, we conclude that the disputed evidence is not so significant as
to prevent the trial court from forming a firm belief or conviction that termination
of Mother’s parental rights is in Alexa’s best interests. See In re
J.O.A., 283 S.W.3d at 345
(citing In re
J.F.C., 96 S.W.3d at 266
). Accordingly, we hold that
legally and factually sufficient evidence supports the trial court’s best interest
finding.
We overrule Mother’s fifth and sixth issues.
43
B. DENIAL OF RIGHT TO COUNSEL
In issue three, Mother contends that she did not receive her statutorily
protected assistance of counsel at trial because her retained counsel, Gary
Smotherman, II, did not appear on either day of trial. We agree.
As the Texas Supreme Court has recently stated, “Parents face a complex
and nuanced family-law system that is challenging to navigate without the
guidance of counsel.” In re B.C., No. 19-306, ___ S.W.3d ___,
2019 WL 6972235
, at *4 (Tex. Dec. 20, 2019). “Considering the importance of the
fundamental rights at issue, the Legislature has adopted important safeguards in
sections 107.013 and 263.0061 [of the Family Code] to help ensure parents will not
be deprived of their parental rights without due process of law.”
Id. Section 107.013
provides that the trial court shall appoint an attorney to
represent the interests of an indigent part in a termination-of-parental-rights case
filed by a governmental entity. TEX. FAM. CODE § 107.013(a)(1). In such a case,
the trial court shall, at the parent’s first appearance in court, inform the parent of
the right to be represented by an attorney, and, if the parent is indigent, the right to
have an attorney appointed by the court.
Id. § 107.013(a-1)(1),
(2). A parent is
then required to initiate the indigency process by filing an affidavit of indigency,
after which, the trial court determines whether the parent is indigent and entitled to
appointed counsel.
Id. § 107.013(d).
44
Section 263.0061 provides:
(a) At the status hearing under Subchapter C and at each permanency
hearing under Subchapter D held after the date the court renders a
temporary order appointing the department as temporary managing
conservator of a child, the court shall inform each parent not
represented by an attorney of:
(1) the right to be represented by an attorney; and
(2) if a parent is indigent and appears in opposition to the suit,
the right to a court-appointed attorney.
TEX. FAM. CODE § 263.0061(a)(1), (2).
In In re B.C., the Texas Supreme Court addressed the protections provided
by these statutes.
2019 WL 6972235
, at * 2-4. In that case, the mother, who
appeared at her first hearing without counsel, was admonished regarding her right
to counsel and told that, if she was indigent and wanted appointed counsel, she
would have to fill out “some forms.”
Id. at *1.
She then appeared at every
permanency hearing thereafter, and proceeded to trial, without counsel.
Id. On appeal,
she claimed, among other things, that she was denied her statutory right to
appointed counsel.
Id. The supreme
court first noted that the trial court had properly admonished
the mother at her initial appearance without counsel, and that mother had not filed
an affidavit of indigency.
Id. at *3.
Thus, under existing case law, the mother was
not entitled to the appointment of counsel.
Id. However, the
supreme court further
concluded that the mother’s “failure to file an affidavit of indigence is not
45
dispositive because the trial court failed to properly admonish her as required by
section 263.0061.”
Id. In so
holding, the supreme court stated, “At the status
hearing and at each permanency hearing after the Department is appointed
temporary managing conservator, trial courts must inform unrepresented parents
about their right to legal representation, including the right to court-appointed
counsel.”
Id. Because the
Mother had appeared unrepresented at the permanency
hearing before trial, and then proceeded to trial unrepresented, at which time “her
relationship with her child was permanently severed,” the supreme court concluded
that “noncompliance with section 263.0061 was not harmless and reversal [was]
required.”
Id. We believe
that the holding of In re B.C. applies equally to this case. The
record shows that Mother was present with her attorney at hearings on September
11, 2018, and on October 23, 2018. On February 19, 2019, neither Mother nor her
attorney in the 2018 case were present, although her attorney in the 2017 case was
present. The docket sheet notes that “[a]ttorney representing motion in the other
action (2018 cause), Mr. Smotherman, was noticed, but not present per department,
mother not present.” On April 9, 2019, Smotherman was again not present, but
Brown, Mother’s attorney in the 2017 cause, was. On the date of the June 25, 2019
trial setting, counsel for the Department stated on the record,
“Your Honor, Mr. Gary Smotherman is the attorney of record for the mother
on the 2018-59296 cause. He has been noticed of this trial setting as he has
46
for every other setting. He did appear for the mother. And at the show
cause hearing on September 11th of 2018, and also October 23rd of 2018,
and he is not present. I asked mother earlier in the day to call him and ask
him when he would be here. She’s not heard from him is my understanding.
The trial court then made no further inquiries of Mother, nor did it advise her
of her right to have counsel present. Instead, the trial court stated, “Okay, You may
proceed.”
Again, at the July 1, 2018 trial date, the Department’s counsel noted:
I would just ask the Court to take judicial notice of our notice of
resumption of recess trial setting that was filed on Thursday afternoon
that notices Gary Smotherman in the 2018 cause. He is mother’s
attorney of record. He’s been noticed. He is not present at this time.”
The trial court responded, “The Court will take judicial notice of the
6/27/2019 notice of resumption of the recessed trial setting as to Mr. Smotherman
is on file[.]” The trial court did not inquire of Mother regarding Mr. Smotherman’s
absence, nor did it admonish Mother of her right to counsel.
We hold that, as in B.C., the trial court failed to comply with the protections
provided in section 263.0061 by failing to properly admonish Mother, who was
unrepresented at both the February 2019 hearing,7 the April 9, 2019 hearing, and
the subsequent June and July 2019 trial dates, of her right to counsel. See B.C.,
2009 6972235, at *3.
7
We acknowledge that the trial court could not have admonished Mother at the
February 2019 hearing because she, too, was not present on that date.
47
The Department nevertheless argues that error, if any, was harmless because
“K.H. fails to acknowledge that both [this case and the 2017 case] were tried
together and the same evidence and testimony was adduced as to both[,]” and that
“[h]er attorney who represented her in the case involving the five older children
was present at each trial proceeding and represented [Mother] throughout the
entirety of each proceeding.”
However, Mother’s attorney in the 2017 case made it clear that he did not
represent Mother in the 2018 case, stating at the June trial date, “On [the 2017
case] I entered an appearance; on the [2018 case] I’m not the attorney of record.”
Again, at the July trial date, Mother’s attorney in the 2017 case appeared, stating,
“My name is Jimmie Brown. I represent [Mother] in the 2017 matter, not in the
other matter . . . .” While the same evidence may have been presented in both the
2017 and 2018 cases, we cannot say, as a matter of law, that different issues could
not have been raised in each case. Mr. Brown certainly made it clear to the trial
court that he was not responsible for the presentation or defense of the 2018 case.
Because, after her initial appearances with counsel, Mother appeared without
counsel at both hearings and at trial, and the trial court never again admonished her
of her right to counsel, we sustain Mother’s third issue.
48
C. CONCLUSION IN CAUSE NO. 2018-59296
Having found the evidence legally and factually sufficient to support the
termination of Father’s parental rights to Alexa under Family Code §
161.001(b)(1)(D) and (E) and § 161.001(b)(2), we affirm the trial court’s Final
Decree for Termination as to him. However, having overruled Mother’s
sufficiency challenges, but having determined that Mother was not properly
advised of her right to counsel under Family Code § 263.006, we reverse the trial
court’s Final Decree for Termination as to her and remand the case for a new trial.
See B.C.,
2019 WL 6972235
, at *4. In light of our disposition of Mother’s third
issue on appeal, we need not address the remaining issues in this cause number,
which would grant her no more relief than that we have already afforded her.
III. CAUSE NO. 2017-65076
A. JURISDICTION
In issue two, Mother contends that the trial court’s termination decree is void
for want of jurisdiction because the trial court did not proceed to trial within the
timetable set forth in Family Code section 263.401. See TEX. FAM. CODE §
263.401. We address this issue first because it raises an issue of subject-matter
jurisdiction. See
id. Regarding timetables
for commencing trials in parental-termination cases,
the Family Code provides in relevant part:
49
(a) Unless the court has commenced the trial on the merits or granted
an extension under Subsection (b) or (b-1) on the first Monday
after the first anniversary of the date the court rendered a
temporary order appointing the department as temporary managing
conservator, the court’s jurisdiction over the suit affecting the
parent-child relationship filed by the department that requests
termination of the parent-child relationship or requests that the
department be named conservator of the child is terminated and the
suit is automatically dismissed without a court order. Not later
than the 60th day before the day the suit is suit is automatically
dismissed, the court shall notify all parties to the suit of the
automatic dismissal date.
(b) Unless the court has commenced the trial on the merits, the court
may not retain the suit on the court’s docket after the time
described by Subsection (a) unless the court finds that
extraordinary circumstances necessitate the child remaining in the
temporary managing conservatorship of the department and that
continuing the appointment of the department as temporary
managing conservator is in the best interest of the child. If the
court makes those findings, the court may retain the suit on the
court’s docket for a period not to exceed 180 days after the time
described by Subsection (a) . . . .
Id. § 263.401(a),
(b).
The record shows that the Department was appointed Temporary Managing
Conservator of the children8 on October 17, 2017. Thus, under the statute, the
initial deadline for commencement of trial was the first Monday after the one-year
anniversary of that date, October 22, 2018.
8
The record shows that the Department was not made Temporary Managing
Conservator of the baby, Alexa, until September 11, 2018, less than one year
before trial in 2019. Thus, this issue was not addressed in the 2018 cause number.
50
However, the record shows that, on October 9, 2018, while the trial court
had jurisdiction, it signed an “Order Retaining Suit on Court’s Docket and Setting
Hearing Dates.” This order found that “extraordinary circumstances necessitate
the subject child remaining in the temporary managing conservatorship of the
Department” and extending the timetable until April 17, 2019, which is within the
180-day extension period permitted by section 263.401(b).
Nevertheless, Mother contends that the hearing on April 9, 2019, which was
within the requisite timetable, was not a commencement of trial, but was “a
strategy used by [the Department] to justify the failure to adhere to the dismissal
deadline . . . .”
This Court has considered what constitutes a trial “commencement” for
purposes of § 263.401. See In re R.J., Jr.,
579 S.W.3d 97
(Tex. App.—Houston
[1st Dist.] 2019, pet. denied). In R.J., Jr., the case was called to trial, the parties
made announcements, the witnesses were sworn, several attorneys announced
“ready,” and then there was a discussion regarding a late-filed
intervention. 579 S.W.3d at 109
. The trial court then instructed the Department to call its first
witness, which it did.
Id. The witness,
the Department’s caseworker, testified
briefly before the trial court recessed.
Id. On appeal,
the parents argued that the
trial did not commence on that date because they were instructed that they did not
need to be present; indeed, the intervenors were not in court.
Id. at 109–10.
This
51
Court rejected the parents’ argument, and “conclude[d] that the record contains
sufficient information to establish that trial on the merits commenced on [that
day].”
Id. at 110.
In this case, the trial court called the case and asked the attorneys to state
their name and who they represented. The Court then considered several
preliminary matters, including a motion to withdraw, the fact that the Department
had a pending motion to compel, and that Mother had apparently just filed a
relinquishment of her rights to the children. Finally, the court considered the fact
that there was an allegation that the Mother, Father, and one of the other fathers
had claimed that they might be of Cherokee descent. The court and the attorneys
present discussed whether there had been compliance with the Indian Child
Welfare Act of 1978, which required notice to the tribe. The Department’s counsel
stated:
We have sent the notices to the tribes in the Bureau of the Indian
Affairs. I have the registered mail receipts returns that show those
were received on April 4th. My understanding of the Federal
regulations is the tribe [has] and the Bureau has a reasonable amount
of time to reply. The regs say 15 days. So[,] I don’t believe that April
4th gets us to 15 days today.
****
I would suggest to the Court or ask for leave of the Court to
commence trial today as to [Father’s] matter and then—as he’s
waiving his concern [about compliance with the ICWA as to him
only] and then come back at a time very shortly from now in order to
give the tribes time to let us know.
52
I don’t—because we’ve done our diligence, we’ve talked to the
relatives in these cases when we can; we’ve not found any evidence
that they’re actually registered. I don’t anticipate this will be a
problem, but I think we have to wait.
All attorneys present agreed that Father could testify because he was
waiving his claim of Cherokee heritage, but that proceeding further would be
problematic.
Thereafter, Father was called to the stand, sworn in, and testified that he was
filing an Irrevocable Affidavit of Voluntary Relinquishment as to his older child,
Catherine. He testified that he understood the relinquishment and felt that it would
be in the child’s best interest. His affidavit was then admitted into evidence. The
case was then recessed and resumed on June 25, 2019.
We believe that, as in R.J., Jr., trial commenced on April 9, 2019, when the
case was called, the parties made their announcements, a witness was sworn, and
evidence was received by the trial court. We do not agree with Mother’s assertion
that the recess was “a strategy used by [the Department] to justify the failure to
adhere to the dismissal deadline.” The record shows that the trial court had
legitimate concerns with proceeding with hearing evidence relating to the parties
claiming Cherokee descent, so, instead, allowed Father to testify and present
evidence because there was no issue as to him.
53
Under these circumstances, as in R.J., Jr., there was sufficient information in
the record to show that the trial court commenced trial on April 9, 2019, which was
within the statutory deadline.
We overrule Mother’s issue two.
B. SUFFICIENCY OF THE EVIDENCE
In issues four, five, and six, Mother argues that there is legally and factually
insufficient evidence supporting the trial court’s findings that she committed the
predicate acts under subsection 161.001(b)(1)(D), (E), and (O) and that termination
of her parental rights is in the children’s best interests. See TEX. FAM. CODE §§
161.001(b)(1)(D), (E), (O), 161.001(b)(2).
Because both the 2018 and 2017 causes were tried together, and the same
evidence was presented in both causes, we overrule issues four, five, and six, for
the same reasons given above in the 2018 cause number.
C. DUE PROCESS AND EQUAL PROTECTION
In a multifarious issue one, Mother contends that she was denied due process
and equal protection because (1) the presiding and associate judges should have
been recused, (2) the ad litem for the children should have been disqualified and
removed, (3) the Department violated provisions of the Indian Child Welfare Act,
and (4) she was not permitted an opportunity to visit her children because the
Department did not develop an appropriate visitation plan.
54
However, to preserve a complaint for appellate review, the record must show
that the complaint was made to the trial court, and that the trial court either ruled
on the complaint or refused to rule and the complaining party objected to the trial
court’s refusal to rule. See TEX. R. APP. 33.1. If a party fails to do this, error is not
preserved, and the complaint is waived. See Bushell v. Dean,
803 S.W.2d 711
, 712
(Tex. 1991). The record in this case does not show any rulings on these
complaints; thus, the issues are waived.9
We overrule issue one.
D. INEFFECTIVE ASSISTANCE OF COUNSEL
In her ninth issue, Mother contends that she received ineffective assistance
of counsel because her “attorney in the 2017 case was forced to represent [her]
after filing a motion to withdraw.”
At the June 2019 trial date, Mother’s counsel, Jimmie Brown, Jr., filed a
Motion to Withdraw, alleging “a pretty much unavoidable conflict of interest.”
After a brief discussion off the record, the trial court denied Brown’s motion.
Brown then stated on the record,
9
To the extent that Mother claims that the docket sheet shows that motions raising
these issues were denied, we note that “a docket entry may not take the place of an
order or judgment.” Pickell v. Guar. Nat. Life Ins. Co.,
917 S.W.2d 439
, 441 (Tex.
App.—Houston [14th Dist.] 1996, no writ). Likewise, a docket sheet is not part of
the record on appeal and cannot be relied on to preserve error. Mason v. Randall’s
Food Markets, Inc., 01-01-00199-CV,
2001 WL 1344355
, at *1 (Tex. App.—
Houston [1st Dist.] Nov. 1, 2001, no pet.).
55
Based on what has occurred between my client and myself, Counsel
will be basically ineffective. And I think that will render this
proceeding pretty much constitutionally [infirm]. I don’t know of any
other way that I can proceed and not prejudice my client one way or
another. And I don’t know how I can do this and be faithful to the
rules that I’m sworn to uphold. So all I can honestly tell the Court is
that I will be ineffective on the record.
Mother contends that, thereafter, Brown was ineffective because he “failed
to object to any of the evidence and exhibits and failed to object to hearsay and
calls for speculation,” and “[n]o defense was mounted for [Mother] in the trials of
June 25, and July 1, 2019.”
1. Standard of Review and Applicable Law
The statutory right to counsel in parental-rights termination cases includes,
as a matter of due process, the right to effective counsel. C.S.F. v. Texas Dep’t of
Family & Protective Servs.,
505 S.W.3d 618
, 619 (Tex. 2016) (citing In re M.S.,
115 S.W.3d 534
, 544 (Tex. 2003)). Proving ineffective assistance of counsel
requires showing: (1) commission of errors so serious that counsel was not
functioning as “counsel” guaranteed by the Sixth Amendment, and (2) that
counsel’s deficient performance prejudiced the defense—i.e., “that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.”
M.S., 115 S.W.3d at 545
(quoting Strickland v. Washington,
466 U.S. 668
, 687 (1984)). We must determine “whether counsel’s defective performance
caused harm; in other words, whether ‘there is a reasonable probability that, but for
56
counsel’s unprofessional error(s), the result of the proceeding would have been
different.’”
Id. at 549–50
(quoting Garcia v. State,
57 S.W.3d 436
, 440 (Tex. Crim.
App. 2001)). “Thus, an ineffective assistance of counsel claim requires a showing
of a deficient performance by counsel so serious as to deny the defendant a fair and
reliable trial.” In re
J.O.A., 283 S.W.3d at 342
. An assertion of ineffective
assistance will be sustained only if the record affirmatively supports such a claim.
Lockwood v. Texas Dep’t of Family & Protective Servs., No. 03-12-00062-CV,
2012 WL 2383781
, at *5 (Tex. App.—Austin June 26, 2012, no pet.) (mem. op.).
The parent has the burden to prove by a preponderance of the evidence that
counsel was ineffective. A.C. v. Texas Dep't of Family & Protective Servs.,
577 S.W.3d 689
, 707 (Tex. App.—Austin 2019, pet. denied); In re P.M.W.,
559 S.W.3d 215
, 218 (Tex. App.—Texarkana 2018, pet. denied).
“With respect to whether counsel’s performance in a particular case is
deficient, we must take into account all of the circumstances surrounding the case
and must primarily focus on whether counsel performed in a ‘reasonably effective'
manner.”
M.S., 115 S.W.3d at 545
. “[C]ounsel’s performance falls below
acceptable levels of performance when the ‘representation is so grossly deficient as
to render proceedings fundamentally unfair[.]’”
Id. (quoting Brewer
v. State,
649 S.W.2d 628
, 630 (Tex. Crim App. 1983)). “In this process, we must give great
deference to counsel’s performance, indulging ‘a strong presumption that counsel’s
57
conduct falls within the wide range of reasonable professional assistance,’
including the possibility that counsel’s actions are strategic.”
Id. (quoting Strickland,
466 U.S. at 689). “It is only when ‘the conduct was so outrageous that
no competent attorney would have engaged in it,’ that the challenged conduct will
constitute ineffective assistance.”
Id. (quoting Garcia,
57 S.W.3d at 440);
Thompson v. State,
9 S.W.3d 808
, 812–13 (Tex. Crim. App. 1999). “Ordinarily,
counsel should not be condemned as unprofessional or incompetent without an
opportunity to explain the challenged actions.” In re S.L.,
188 S.W.3d 388
, 395
(Tex. App.—Dallas 2006, no pet.) (citing Bone v. State,
77 S.W.3d 828
, 836 (Tex.
Crim. App. 2002)). “Thus, when the record is silent regarding counsel’s reasons
for his conduct,” as it is here, “we defer to counsel’s decision if there is at least the
possibility that the conduct could have been legitimate trial strategy.”
Id. (citing Ortiz
v. State,
93 S.W.3d 79
, 88–89 (Tex. Crim. App. 2002)). Stated another way,
if counsel “may have acted in accordance with a plausible strategy,” we will not
find counsel’s conduct deficient. In re L.G.R.,
498 S.W.3d 195
, 209 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied).
2. Analysis
Here, there is nothing in the record to show why Brown stated to the trial
court that he would be ineffective if his motion to withdraw were not granted. The
discussion with the trial court was off the record, and this Court will not speculate
58
as to the reasons for Brown’s statements. We cannot conclude that Brown was
ineffective merely because he stated that he would be. Instead, we look at the
totality of his representation to determine whether he was ineffective.
Regarding Mother’s claim that Brown “failed to object to any of the
evidence and exhibits” and mounted “no defense” for her, the record does not
support this claim. In fact, the record shows that Brown objected numerous times
for hearsay, speculation, leading questions, testimony outside the witness’s
expertise, vagueness, and several others. He cross-examined the Department
regarding Mother’s criminal record and argued that she could not be responsible
for not maintaining contact with her older children when she was prohibited by the
Court from visiting them. Mother does not point to anything in the record to
suggest that Brown did not have a plausible trial strategy for his objections or any
lack of objections or that, had he conducted himself at trial differently, the result
would have been different.
Mother further claims that Brown was ineffective because he did not object
to the lack of a timely commencement of trial. However, we have already
determined that trial was timely commenced at the on April 9, 2019, when Father
was called to the stand, sworn, and presented evidence. Thus, Brown’s failure to
object to the commencement of trial was not ineffective.
59
Finally, Mother contends that Brown was ineffective because he did not
object to the associate judge hearing the proceedings or to alleged violations of the
Indian Child Welfare Act. However, the record does not show any violation of the
Indian Child Welfare Act. And, Mother does not show that hearing the case before
the associate judge was not a valid trial strategy or that, had the case been heard by
the presiding judge, the result would have been different.
We overrule issue nine.
E. DENIAL OF INTERVENTION AND VIOLATION OF FOSTERING
CONNECTIONS ACT
In issue eight, Mother argues that the Department’s “denial of the
intervention and failure to consider relative placement is a violation of [Mother’s]
constitutional rights as well as a violation of [the] Fostering Connections Act.”10
Other than a single citation to a dissent in In re B.D.A.,
546 S.W.3d 376
–77
(Tex. App.—Houston [1st Dist.] 2018, pet. denied) (Massengale, J., dissenting),
that mentions the goals of the Fostering Connections Act, Mother provides no legal
authority or analysis to support her claim that the Act was violated in this case. See
TEX. R. APP. P. 38.1(i) (appellant’s brief must contain clear and concise argument
for contentions made, with appropriate citations to authorities and to record).
“Rule 38 requires [a party] to provide us with such discussion of the facts and the
10
Presumably, Mother is referencing the federal Fostering Connections to Success
and Increasing Adoptions Act. See Pub. L. No. 110–351, 122 Stat. 3949 (2008)
(codified as amended in scattered sections of Title 42 of the United States Code).
60
authorities relied upon as may be requisite to maintain the point at issue.” Tesoro
Petroleum Corp. v. Nabors Drilling USA, Inc.,
106 S.W.3d 118
, 128 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied). Because issue eight is inadequately briefed,
we conclude that it is waived. See Dauz v. Valdez,
571 S.W.3d 795
, 805 (Tex.
App.— Houston [1st Dist.] 2018, no pet.); Izen v. Comm’n for Lawyer Discipline,
322 S.W.3d 308
, 321–22 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).
F. APPOINTMENT OF DEPARTMENT AS SOLE MANAGIING
CONSERVATOR
In issue seven, Mother contends that there is legally and factually
insufficient evidence to support the appointment of the Department as sole
managing conservator of the children.
When the parents’ rights are terminated, the trial court must appoint “a
suitable, competent adult, the Department of Family and Protective Services, or a
licensed child-placing agency as managing conservator of the child.” TEX. FAM.
CODE § 161.207(a); see In re M.M.M., No. 01-16-00998-CV,
2017 WL 2645435
,
at *17 (Tex. App.—Houston [1st Dist.] June 16, 2017, no pet.) (mem. op.). We
review conservatorship determinations for an abuse of discretion and will reversed
one only if the trial court’s decision is arbitrary and unreasonable. In re J.A.J.,
243 S.W.3d 611
, 616, (Tex. 2007); see also
A.C., 394 S.W.3d at 644
.
An order terminating the parent-child relationship divests the parent of all
legal rights and duties with respect to the child. TEX. FAM. CODE § 161.206(b).
61
Once we overrule a parent’s challenge to a termination order, the trial court’s
appointment of the Department as sole managing conservator may be considered a
“consequence of the termination pursuant to Family Code section 161.207.” In re
A.S.,
261 S.W.3d 76
, 92 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Because we have overruled Mother’s challenges to trial court’s order
terminating her parental rights in the 2017 case, the order has divested Mother of
her legal rights and duties related to Anna, Bryan, Catherine, Deborah, and Elijah.
See TEX. FAM. CODE § 161.206(b); In re D.K.W., Jr., No. 01-17-00622-CV,
2017 WL 6520439
, at *5 (Tex. App.—Houston [1st Dist.] Dec. 21, 2017, pet. denied)
(mem. op.). As a result, Mother does not have standing to challenge the portion of
the order appointing the Department as permanent managing conservator of the
children because any alleged error could not injuriously affect her rights. D.K.W.,
Jr.,
2017 WL 6520439
, at *5.
We overrule Mother’s sixth issue on appeal.
62
G. CONCLUSION IN CAUSE NO. 2017-65076
Having overruled all of Mother’s issues, we affirm the trial court’s Final
Decree for Termination in cause number 2017-65076.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Kelly and Goodman.
63 |
3,264,524 | 2016-07-05 16:34:08.418029+00 | null | null | The Honorable Cliff Hoofman State Senator P.O. Box 1038 North Little Rock, Arkansas 72115
Dear Senator Hoofman:
This is in response to your request for an opinion on several questions concerning Act 899 of 1989, which is entitled "An Act to Provide for the Removal of Unattended and Abandoned Vehicles; and for Other Purposes". Your questions are restated and answered below in the order posed.
Your first question is as follows:
What conflict, if any, exists between Acts 680 and 899 of 1989? Specifically, are there discrepancies in the procedures for the public or private sale of abandoned vehicles?
The answer to your first question is "yes". The requirements which must be met prior to the sale of an abandoned vehicle are different under each act. It should be noted initially that the acts differ fundamentally on two issues which are unrelated to the sale, but which go to the general nature of the acts. Act 899 provides a procedure for the removal of abandoned vehicles left on PUBLIC property, and contemplates "tagging" of the vehicles by law enforcement officials, who will then cause the vehicles to be placed in the custody of a towing-storage firm. Act 680, however, applies to abandoned vehicles left on PUBLIC or PRIVATE property and contemplates that private individuals will have the vehicles placed in the custody of a towing-storage firm. Both acts provide that a towing-storage firm obtaining possession of an abandoned vehicle shall give notice to the owner or owners of the vehicle1. The time limit and manner for giving the notice is, however, different under each act.
Act 899 provides that notice of possession must be mailed within FIVE working days of the date the vehicle is logged in at the towing-storage firm. Act 899 also provides that this notice must be sent by certified mail, return receipt requested. Additionally, a subsequent and separate notice of sale must be sent to the owner or owners 15 days before the date of any sale of the vehicle, and this same notice of sale must automatically be published in a newspaper.
Act 680 of 1989 provides that notice of possession must be sent by the towing-storage firm to the owner of the vehicle not later than TEN days after taking the vehicle into custody. The notice is to be sent by certified mail. Act 680 of 1989, unlike Act 899 of 1989, does not require a separate notice of sale, and requires publication of the notice of possession only if the identity and address of the last registered owner cannot be determined. Act 680, however, requires that an affidavit be executed by the holder of the vehicle stating that the affiant has complied with the notice provisions of the act. Additionally, under Act 680, the towing-storage firm is required to call the National Automobile Theft Bureau prior to a sale of the vehicle.
Another difference between the two acts involves the disposition of excess sale proceeds over the amount necessary to cover the towing and storage charges. Under Act 899, the excess proceeds are to be paid to the county clerk to the account of the person legally entitled thereto. Under Act 680, if after ninety days from the sale date, the owner has not been located, and if no claim has been made on the vehicle, the excess sale proceeds go to the State Highway and Transportation Department Fund.
Additionally, Act 680 of 1989 appears in Section 2 to authorize a private sale of a vehicle abandoned on private property. That section makes no reference to a public sale, although the same notice and other procedural requirements set out in Section 1 are applicable. Section 1 of Act 680 of 1989, and Act 899 of 1989 authorize only public sales.
Your second question is as follows:
In Section 5 of Act 899 of 1989, the law enforcement agency who requests the towing and storage service must provide that firm with the name and address of the last registered owner, any lienholder and the serial number of the vehicle. Does this language permit law enforcement authorities to disseminate information from the Arkansas Crime Information Center and/or National Law Enforcement Teletype System?
Section 5 of Act 899 of 1989 does not indicate how the law enforcement agency is to obtain the required information. I have, however, enclosed a copy of Opinion No. 87-356, wherein it is noted that this information is generally available from Motor Vehicle Division of the Revenue Department. We must conclude that to the extent dissemination of information from the sources you mentioned is otherwise prohibited, the act does not stand as contrary authority.
Your third question involves the operation of the Arkansas Towing and Recovery Board, created in Act 899 of 1989, and is as follows:
Will the newly-formed Arkansas Towing And Recovery Board have an administrative or enforcement arm? If so, after the promulgation of rules and regulations, may it spend money to comply with the Administrative Procedures Act and may it collect fees for funding of operations and enforcement? May it use privately raised funds to underwrite the advertising efforts to comply with the Administrative Procedures Act?
Clearly, the Board will have an administrative arm. The board itself will be an administrative body charged with the duty to make rules and regulations to carry out the act. The enforcement powers of the board are less clear. The act in Section 9 (c) provides:
(c) The Board shall promulgate such rules and regulations to carry out the intent of this Act and shall regulate the towing industry including requirements for licensing. Such authority shall not extend to the setting of tariffs for the towing industry.
Under this language, the Board has the authority to license towing firms and to "regulate the towing industry". The board's enforcement powers, in my opinion, include its authority to approve licenses for towing firms, and to regulate the industry. This authority will presumably include authority to conduct hearings on compliance with the rules promulgated by the Board, and the authority to impose sanctions, including suspension of licenses, for non-compliance.
In response to the second part of your third question, it appears that the Board will have to spend money to comply with the Administrative Procedures Act, (A.C.A. 25-15-201 et seq.), because it is subject to that act. A.C.A. 25-15-202 (1). Prior to the adoption to rules and regulations, the board must comply with the notice provisions of the Administrative Procedures Act. A.C.A. 25-15-204. Your question thus becomes whether the Board can charge fees and use privately raised funds to cover the expense of this notice and the Board's operations in general. Although the authority to charge fees is not set out in the statute, it may reasonably be concluded that the legislature intended that the Board be funded by the collection of license fees. It has been held that in defining the powers of an administrative body, it is important to consider the purpose of the legislation, and to give the legislation a practical construction which will enable the body to perform the duties required of it by the legislature. SEE GENERALLY, FEDERAL DEPOSIT INSURANCE CORPORATION v. SUMNER FINANCIAL CORP., C.A., 451 F.2d 898 (5th Cir. 1971), and 73 C.J.S. PUBLIC ADMINISTRATIVE LAW AND PROCEDURE 50. The legislature has required the new Board to comply with the Administrative Procedures Act, (25-15-202 (1)), and that requirement necessarily mandates funding.
It is thus reasonable, in my opinion, to conclude that the new Board has authority to collect fees on the issuance of licenses. Additionally, we can find no general prohibition against the collection and expenditure of privately raised monies in this regard.
Your final question is as follows:
Under Section 4 of Act 899 of 1989, is a vehicle which is more than three (3) feet from the public road/way excluded from enforcement under this statute? Which term "public road" or "public way" is the appropriate one for this legislation?
Section 4 of Act 1989 provides:
TAGGING. Any law enforcement officer observing a vehicle on or near a public way which appears to be unattended shall tag the same by affixing securely a colored form, or by using an easily observable sticker. Said tag shall show (1) the date and time of tagging; (2) THAT SAID VEHICLE WILL BE REMOVED PURSUANT TO THIS STATUTE UNLESS THE VEHICLE IS REMOVED WITHIN TWENTY-FOUR HOURS IF WITHIN THREE FEET OF A PUBLIC WAY; (3) the location and telephone number where more information may be obtained; and (4) the identification of the officer. [Emphasis added.]
It is my opinion that the answer to the first part of your fourth question is "no". Section 4 itself authorizes officers to tag vehicles "on or near a public way". It does not specify that the vehicle must be within three feet of a public way. The same conclusion can be reached under the act's definition of "unattended". That term is defined in the act as including vehicles left "seventy-two (72) hours in a location of three (3) or more feet of a public way". It is thus my opinion that such vehicles are not excluded from the operation of Section 4 of the act. That section, however, provides that the officer shall include the time limit within which the vehicle will be removed only on vehicles left within three feet of a public way.
In response to the second part of your fourth question, it is my opinion that neither term "public road" nor "public way" is more appropriate than the other. The term "public way" is used in the act, and a definition is provided. There is thus no question as to whether one term is more "appropriate" than the other. The legislature can opt to use either term and define it so as to suit its specific purposes.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elana L. Cunningham.
1 Both acts also require notification of lienholders. |
4,489,452 | 2020-01-17 22:01:51.361607+00 | Ceben | null | *196OPINION.
Ceben:
There appears to be no controversy as to the annual rates of depreciation on machinery and equipment, steel rails, buildings, and lakes, since the respondent has admitted, and we so find, that the annual rate of depreciation on steel rails is 10 per cent. A controversy does arise, however, in respect to the computation- of depreciation on additions made during the year. In support of its contention on this point, the petitioner submitted ledger sheets, which showed entries on various dates during the year of amounts included in the various accounts. In the case of machinery and equipment, buildings and steel rails, it is apparent from these accounts that the method employed by the Commissioner of allowing one-half the rate for a full year, which is equivalent to allowing the full rate for one-half year, works to the advantage of the petitioner and gives it a deduction in excess of that which would be allowed if depreciation were computed on each addition from the date entered. In the case of railroad construction, the advantage would be only slightly in favor of the petitioner, but this would not result in a material advantage, since the largest expenditure for the year was $8,045.08, made on April 30. In the case of railroad supplies, the expenditures were made in January and February, 1922.
The ledger sheets merely show when the expenditures were made. They do not show when the machinery and equipment, buildings, rails or supplies were actually installed, erected or consumed. Under ordinary circumstances, depreciation does not start until the equipment has actualty been installed and is ready for operation. It is admitted by the petitioner that operations did not start until May, 1922, and up to that time the petitioner was not engaged in actual business operations, having mined no coal. No information has *197been submitted on this point, other than that operations started in May, 1922. We are, therefore, of the opinion that petitioner has failed to show that the Commissioner erred in computing depreciation on additions made during the year 1922. All that the statute requires is that the Commissioner make a reasonable allowance, and the record in this proceeding does not establish that he has not done this.
There remains the question of the proper rate to be used in determining the exhaustion of capital expended for shafts, development, railroad, and right of way. Petitioner originally, and even as late as 1924, considered that the rate should be based upon a life of 25 years. The respondent, from the data submitted by the petitioner, determined that the rate should be based upon a life of 37 years. The petitioner now maintains that, in view of the information available in 1927, the life should be about 17 years.
The witnesses for the petitioner have established that these assets, when in use and properly maintained, do not exhaust appreciably due to lapse of time, but exhaust only because of the fact that the mine exhausts. It is perfectly apparent that the exhaustion of the mine is not necessarily in equal annual amounts. Its exhaustion, during use, bears a direct relation to the mineral extracted each year. ⅞ is apparent to us that the exhaustion of the capital invested in these assets should be computed on a tonnage basis in the same manner that deduction for depletion is computed. The rate per ton should be based upon a reserve as of January 1,1922, of 7,700,000 tons.
Judgment will be entered under Bule 50. |
4,638,819 | 2020-12-02 18:00:21.225129+00 | null | https://www2.ca3.uscourts.gov/opinarch/201910np.pdf | ALD-003 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-1910
___________
CURTIS L. GIBSON,
Appellant
v.
SETH ERICKSON, Unit Manager; MARK CAPPOZZA, Facility Manager
SCI FAYETTE PRISON OFFICIALS
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 2-19-cv-00357)
District Judge: Honorable David S. Cercone
____________________________________
Submitted for Possible Dismissal Pursuant to
28 U.S.C. § 1915
(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
October 1, 2020
Before: MCKEE, GREENAWAY, JR., and BIBAS, Circuit Judges
(Opinion filed: December 2, 2020)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Appellant Curtis Gibson filed a civil rights complaint against prison administrators
based on the treatment of a single piece of mail.1 Specifically, Gibson alleged that he
received an envelope sent from this Court which had been opened before it was given to
him. Gibson later submitted as an exhibit the opened envelope, which included a sticker
that read: “This mail was misbarcoded, missent and/or opened by electronic devices.
Please accept our apologies.” In response to a grievance that Gibson filed about the
incident, Seth Erickson, the unit manager at the prison, explained that the envelope was
mistakenly opened by the Post Office before it arrived at the prison. Gibson claimed that
Erickson and Mark Cappozza, the facility manager, failed to train the officers that sort the
mail and that Erickson and Cappozza were further liable for denying his administrative
grievance in violation of his due process rights.2 The District Court granted Erickson’s
and Cappozza’s motion to dismiss and Gibson appealed.
This Court has jurisdiction under
28 U.S.C. § 1291
, and we review the District
Court’s dismissal de novo. See Newark Cab Ass’n v. City of Newark,
901 F.3d 146
, 151
1
Because we write primarily for the benefit of the parties, we will recite only the facts
necessary for the discussion.
2
Gibson also appeared to seek relief based on the handling of an unrelated grievance
about a delay in the prison processing Gibson’s outgoing mail. However, we will not
address that claim because, as was explained in the Report and Recommendation, Gibson
suffered no actual injury from the alleged incident. See Lewis v. Casey,
518 U.S. 343
,
351 (1996).
2
(3d Cir. 2018). We construe Gibson’s pro se complaint liberally. See Erickson v.
Pardus,
551 U.S. 89
, 94 (2007) (per curiam). We may summarily affirm on any ground
supported by the record if the appeal fails to present a substantial question. See Murray
v. Bledsoe,
650 F.3d 246
, 247 (3d Cir. 2011) (per curiam); 3d Cir. L.A.R. 27.4; I.O.P.
10.6.
To state a claim under
42 U.S.C. § 1983
, a plaintiff must allege that the
defendants had “personal involvement in the alleged wrongs,” which can be shown
through “allegations of personal direction or of actual knowledge and acquiescence.”
Rode v. Dellarciprete,
845 F.2d 1195
, 1207 (3d Cir. 1988). As the District Court pointed
out, Gibson has not alleged that Erickson or Cappozza were involved in screening the
mail but were instead involved in the grievance process. He has thus not stated a First
Amendment claim against them based on the opening of his legal mail.
To the extent that Gibson alleged that Erickson or Cappozza were liable for failing
to train their subordinates, that claim fails because no actual constitutional violation took
place. See Santiago v. Warminster Twp.,
629 F.3d 121
, 130 (3d Cir. 2010). Gibson, in
his amended complaint, described only one instance where the officials allegedly opened
his legal mail before it was given to him. The sticker on the outside of the envelope,
indicating that the Post Office mistakenly opened it, undermines that allegation. In any
event, even if a prison official opened the envelope, the claim fails because, while a
“pattern or practice” of opening legal mail outside the presence of an inmate is sufficient
3
to state a First Amendment violation, see Jones v. Brown,
461 F.3d 353
, 359 (3d Cir.
2006), a single instance is usually not enough.3 See Bieregu v. Reno,
59 F.3d 1445
, 1452
(3d Cir. 1995), overruled on other grounds by Lewis v. Casey,
518 U.S. 343
(1996); see
also Davis v. Goord,
320 F.3d 346
, 351 (2d Cir. 2003).
Finally, Gibson appears to have brought a due process claim against the
defendants based on the handling of his grievance about the open envelope. It is unclear
what the basis of his claim is other than the denial of his grievance. Regardless, such
claims are not actionable because prisoners do not have a constitutional right to prison
grievance procedures. See Massey v. Helman,
259 F.3d 641
, 647 (7th Cir. 2001).4
Accordingly, we will affirm the judgment of the District Court.5
3
Gibson failed to state a claim against the unnamed prison officials for the same reason.
4
In his complaint, Gibson also listed a number of criminal statutes and prison regulations
that were allegedly violated. As the Magistrate Judge explained in the Report and
Recommendation, no private right of action exists for those violations.
5
Gibson’s motion for appointment of counsel and motion to “present discovery material
for appeal purposes” are denied. See United States v. Petersen,
622 F.3d 196
, 202 n.4 (3d
Cir. 2010); Tabron v. Grace,
6 F.3d 147
, 155-56 (3d Cir. 1993).
4 |
4,638,821 | 2020-12-02 18:00:29.616529+00 | null | http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0680n-06.pdf | NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0680n.06
No. 19-6461
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Dec 02, 2020
DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) THE UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF KENTUCKY
)
WALTER EUGENE POWELL, ) OPINION
)
Defendant-Appellant. )
)
)
BEFORE: CLAY, GIBBONS, and NALBANDIAN, Circuit Judges.
NALBANDIAN, Circuit Judge. Walter Powell pled guilty to violating federal drug law
based on evidence gathered from his hotel room. He appeals two holdings by the district court.
The first was a denial of his motion to suppress evidence from that room. And the second was the
district court’s designation of Powell as a career offender. For the reasons below, we AFFIRM.
I.
A.
Our story starts at the Microtel in Lexington, Kentucky, where Powell had rented a room.
While on duty, Eugene Zita—an assistant manager at the hotel—received complaints from an
employee that there was a strong marijuana odor coming from a room. She investigated the smell
and tracked it to Powell’s room, Room 122. After knocking on the door and receiving no response,
Zita decided to evict the room’s occupants because the Microtel had a strict no-smoking policy.
Case No. 19-6461, United States v. Powell
So Zita called the police “to help [her] out” “[i]n case they are dangerous people.” (R. 41, Tr. of
Suppression Mot. Proceedings, PageID # 185.) Zita testified that she didn’t want the police to
arrest the evicted guests or even search their things; she only “wanted them to help [her] get this
person out of the hotel.” (Id. at PageID # 187.)
Lexington Police Department Officers Christopher Johnson and Paul Hogan responded to
Zita’s call. When they arrived, they visited Zita at the hotel’s front desk, but she was busy, so she
directed them toward Powell’s room. Hogan and Johnson went to the room and knocked but, like
Zita, received no response. Officer Johnson then walked around to the outside of the hotel to check
if he could see inside the room through the window, but the blinds were drawn.
The officers returned to the front desk, and Zita told them “she wanted to evict” the
occupants of Room 122. (Id. at PageID # 147.) She made either a master key or duplicate key1
and walked back to Powell’s room with the officers. Zita knocked on the door, announced herself,
and, after receiving no response, used her key to enter the room. The officers stepped into the
room with Zita to conduct a protective sweep. As soon as it was clear no one was present, the
officers stepped back out to the threshold of the room, holding the door open. The officers
remained in the doorway of the room to ensure that the occupants didn’t return and harm Zita.
Zita, however, stayed inside the room. With no prompting from the officers, Zita began to
go through her “pattern” and “automated process” of inspecting the room. (Id. at 184–85.) This
included looking inside drawers and the room’s refrigerator. Zita conducted this inspection
because, after she smelled marijuana, she was looking for evidence to charge the guest a fee for
1
The testimony of Officer Johnson and Eugene Zita makes it unclear if Zita used a master or
duplicate key to enter Powell’s room. But the district court, in its opinion and order denying
Powell’s motion to suppress, stated that Zita produced a master key to get inside the room.
2
Case No. 19-6461, United States v. Powell
smoking inside. Her intention, according to her testimony, wasn’t to find evidence of smoking to
turn over to the police, but only to support the charge for smoking.
During her inspection, Zita opened the room’s refrigerator. Inside, she saw a “brown, kind
of squarish” package inside a black bag. (Id. at PageID # 182, 195.) She then asked the officers,
“Can I take it out?”, and both told her she could. (Id. at PageID # 208.) The officers didn’t tell
Zita to search anything or open the refrigerator, and Zita testified that it was her decision to open
the refrigerator. But she also testified that if the officers told her to leave the package inside the
refrigerator, she would’ve, and that she “gave [the officers] the decision” of whether to take the
package out. (Id. at PageID # 209, 216.) Officer Johnson, on the other hand, testified that he “was
trying to leave it to [Zita’s] discretion” whether to take the package out of the refrigerator. (Id. at
PageID # 151.)
Either way, Zita pulled the bag out of the refrigerator and began to walk toward the officers,
and Officer Hogan walked toward her to inspect it. Hogan took the package, then, recognizing the
contents as containing fentanyl, placed it on a table. Zita continued her search, discovering various
other pieces of contraband and evidence of drug trafficking. Eventually, she called Powell and
told him that he needed to return to his room because a pipe had burst. When Powell arrived,
police arrested him.
B.
Based on the evidence discovered in Powell’s hotel room, the government charged Powell
with various drug offenses, including possession with intent to distribute fentanyl. Powell moved
to suppress the evidence from the Microtel, arguing that the search violated the Fourth
Amendment. He argued that Zita acted as the government’s agent when she searched his room,
so she needed a warrant before doing so. And he also argued that he retained an expectation of
3
Case No. 19-6461, United States v. Powell
privacy in the room until well after Zita discovered the drugs in the refrigerator. The district court
denied the motion to suppress, finding that Zita was not the government’s agent and that Powell
lacked standing to challenge the search because the Microtel evicted Powell before Zita discovered
the drugs. The eviction destroyed Powell’s expectation of privacy in the room, so he lacked
standing to challenge the search.
Powell then pled guilty to Count 2 of a Second Superseding Indictment—possession with
intent to distribute 40 grams or more of a substance containing a detectable amount of fentanyl.
He reserved the right to appeal whether he had a reasonable expectation of privacy in his hotel
room.
Before sentencing, Powell’s presentence investigation report revealed that he had multiple
convictions for delivery/manufacture of heroin or cocaine in violation of
Mich. Comp. Laws § 333.7401
. So the report classified Powell as a career offender under § 4B1.1 of the Federal
Sentencing Guidelines because Powell’s Michigan convictions qualified as controlled substance
offenses. Powell objected to that classification, but the district court overruled him and applied
the career-offender sentence enhancement. Powell’s guideline sentence range was, as a result of
the enhancement, 188 to 235 months, and the district court imposed a 210-month sentence.
Powell now appeals the district court’s denial of his motion to suppress the evidence from
the Microtel. He also appeals his sentence, arguing that the district court erred in classifying him
as a career offender. We affirm in both respects.
II.
In reviewing the district court’s denial of Powell’s motion to suppress, we review the
district court’s factual findings for clear error and its legal conclusions de novo. United States v.
Graham,
275 F.3d 490
, 509 (6th Cir. 2001). “A factual finding will only be clearly erroneous
4
Case No. 19-6461, United States v. Powell
when, although there may be evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been committed.” United States v.
Adams,
583 F.3d 457
, 463 (6th Cir. 2009) (quoting United States v. Navarro-Camacho,
186 F.3d 701
, 706 (6th Cir. 1999)). We consider the evidence in the light most favorable to the government
and most likely to support the district court’s decision. United States v. Pearce,
531 F.3d 374
, 379
(6th Cir. 2008); Navarro-Camacho,
186 F.3d at 705
. If the district court’s “conclusion can be
justified for any reason,” we will affirm the denial of the suppression motion. United States v.
Pasquarille,
20 F.3d 682
, 685 (6th Cir. 1994).
On the other hand, a district court’s determination that a prior offense qualifies as a
controlled substance offense is a legal determination that we review de novo. United States v.
Garth,
965 F.3d 493
, 495 (6th Cir. 2020).
A.
We begin with the suppression motion. Powell argues that police searched his hotel room
in violation of the Fourth Amendment. To win on this argument, Powell must establish two things:
first, that Zita was the government’s agent when she searched his room, and second, that the
Microtel hadn’t evicted him yet, preserving his reasonable expectation of privacy in the room.
Because Powell can’t pass the first hurdle, we need not reach the eviction issue.
“[T]he Fourth Amendment proscribes only governmental action.” United States v.
Lambert,
771 F.2d 83
, 89 (6th Cir. 1985). So it doesn’t apply to a search or seizure—even an
unreasonable one—conducted “by a private individual not acting as an agent of the government or
with the participation or knowledge of any governmental official.” Id.; see United States v.
Jacobsen,
466 U.S. 109
, 113 (1984). And when a person delivers evidence to police that he found
5
Case No. 19-6461, United States v. Powell
during a private search, it’s not excludable just because he obtained it without a warrant. United
States v. Clutter,
914 F.2d 775
, 778 (6th Cir. 1990).
We’ve developed a two-part test for determining when a “private” person acts as the
government’s agent. First, the police must instigate, encourage, or participate in the search.
Lambert,
771 F.2d at 89
. And second, the individual must “engage[] in the search with the intent
of assisting the police in their investigative efforts.”
Id.
The defendant must establish both prongs
before the Fourth Amendment applies.
Whether a person acts as an agent of the government “necessarily turns on the degree of
the Government’s participation in the private party’s activities.” Skinner v. Ry. Lab. Execs’ Ass’n,
489 U.S. 602
, 614 (1989). But some bare level of contact between the person and the police isn’t
enough. “A person will not be acting as a police agent merely because there was some antecedent
contact between that person and the police.” Lambert,
771 F.2d at 89
. Likewise, where the intent
of the party conducting the search “is entirely independent of the government’s intent to collect
evidence for use in a criminal prosecution,” the party isn’t the government’s agent. United States
v. Hardin,
539 F.3d 404
, 418 (6th Cir. 2008) (emphasis in original) (quotations omitted). And
“there is no seizure within the meaning of the fourth amendment when an object discovered in a
private search is voluntarily relinquished to the government.” United States v. Coleman,
628 F.2d 961
, 966 (6th Cir. 1980).
Zita wasn’t the government’s agent when she searched Powell’s room. Indeed, Powell
cannot show that her actions meet either prong of the Lambert test. To see why, consider a case
in which we found agency: United States v. Hardin,
539 F.3d at 404
. Hardin had an active warrant
for his arrest, and police received a tip that he was staying in an apartment.
539 F.3d at 407
. So
they approached the apartment manager and asked him to enter the apartment to see if Hardin was
6
Case No. 19-6461, United States v. Powell
there.
Id.
The police devised a ruse—which was “without a doubt” their idea—where the manager
would pretend to check for a water leak.
Id.
When the manager completed the ruse and confirmed
Hardin’s presence, police entered the apartment without a warrant and arrested Hardin.
Id. at 408
.
They also recovered drugs, cash, and several firearms.
Id.
Hardin moved to suppress this evidence, but the district court denied the motion.
Id.
at
408–09. We reversed.
Id. at 420
. We noted that the ruse was the design of the government
(Lambert prong one), the police asked the manager to enter the apartment (also prong one), and
the manager had no reason to enter the apartment independent of his intent to assist the police
(prong two).
Id. at 419
. So “the manager was acting as an agent of the government” when he
entered the apartment.
Id. at 420
.
But the facts we relied on in Hardin to find agency are missing here. Unlike in Hardin,
Zita’s reason for entering Powell’s room didn’t come from the government. Indeed, Zita decided
on her own to evict Powell. And neither did the police ask Zita to conduct the search, like they
did the apartment manager in Hardin. Instead, they accompanied her to Powell’s room to ensure
her safety and then withdrew to the doorway when it was clear Powell wasn’t there. So evidence
showing police instigation and participation—the first Lambert prong—is absent here. And
besides, evidence establishing the second prong is also missing. Zita was going through her
habitual and “automated” process of inspecting Powell’s room and looking for evidence to charge
him a fee for smoking. So, unlike the apartment manager in Hardin, she had a reason to search
his room independent of her intent to assist the police in a criminal investigation.
Now consider some cases in which we found agency lacking. Start with United States v.
Howard,
752 F.2d 220
(6th Cir.), opinion vacated on other grounds,
770 F.2d 57
(6th Cir. 1985)
(en banc). After the Howard residence burned down, both police and the homeowners’ insurance
7
Case No. 19-6461, United States v. Powell
company investigated the remains for arson. Id. at 227. Although the insurance investigator could
enter the property under the insurance contract, the police had neither a warrant nor the Howards’
consent. Id. So when the government eventually prosecuted Howard and others for crimes related
to the house fire, the district court wouldn’t allow it to introduce testimony from the investigating
officer, which the court viewed as fruit of an unlawful search. Id. The district court did, however,
allow the insurance investigator to testify. Id.
The defendants appealed the introduction of that testimony. Id. They argued that the
investigator was the government’s agent. Id. We disagreed—even though “there is no question
that the government had knowledge of, and even participated in the search.” Id. In other words,
there was no question that the defendants satisfied the first Lambert prong, but they faltered on the
second. That’s because the knowledge and participation of the police alone weren’t enough.
Instead, where “the intent of the private party conducting the search is entirely independent of the
government’s intent to collect evidence for use in a criminal prosecution, . . . the private party is
not an agent of the government.” Id. And “when police are merely assisting a private party, who
has authority to search and a legitimate need to do so, . . . courts are reluctant to exclude resulting
evidence.” Id. at 227–28 (alteration in original) (quoting United States v. Capra,
501 F.2d 267
,
272 n.4 (2d Cir. 1974), cert. denied,
420 U.S. 990
(1975)). So the investigator was lawfully on
the property, and his actions weren’t attributable to the government.
Id. at 228
.
There are important similarities—and equally important distinctions—between the search
in Howard and the search here. Like Howard, the police were present when the search happened.
But that was hardly dispositive in Howard because that only goes to the first Lambert prong.
Besides, it’s hardly clear police “participated” in Zita’s search here like they did in the search in
Howard. Indeed, unlike Howard, the police weren’t in Powell’s room to investigate anything or
8
Case No. 19-6461, United States v. Powell
gather evidence for prosecution. See Lambert,
771 F.2d at 89
(“First, the police must have
instigated, encouraged or participated in the search.”). They were just there to protect Zita if
anything went south during Powell’s eviction. At any rate, like the defendants in Howard, Powell
can’t satisfy the second Lambert prong. Just as the insurance investigator had his own reason to
search the Howards’ house, distinct from the government’s, Zita’s reason for searching the room
was to gather evidence for a smoking charge. That’s independent of any law enforcement purpose.
The officers were, in other words, “merely assisting” Zita in a passive, unengaged way, unrelated
to an investigatory intent. Howard, 752 F.2d at 227.
Next, consider United States v. Bruce,
396 F.3d 697
(6th Cir.), vacated in part on reh’g on
other grounds,
405 F.3d 1034
(6th Cir. 2005). Bruce checked into a hotel and paid for a week’s
worth of lodging.
396 F.3d at 702
. But a few days later, the hotel manager called the police to
report the smell of burning marijuana coming from either Bruce’s or his companions’ room.
Id.
The police asked the hotel to save, secure, and mark the trash bags from those rooms—and hotel
employees were eligible for a cash reward for their assistance. Id.; id. n.2. After discovering
contraband in the trash, the police obtained search warrants for the rooms and arrested Bruce. Id.
at 703–04. Bruce unsuccessfully moved to suppress the evidence from the rooms and then
appealed after entering a guilty plea. Id. at 704.
We held that the hotel’s handling of Bruce’s trash didn’t violate the Fourth Amendment,
id. at 705, because neither of the Lambert prongs was met. Id. at 706. For one thing, “[t]here
[wa]s no evidence that the staff were asked to look around the rooms, report any suspicious items,
or otherwise deviate from their typical cleaning routine.” Id. For another, “hotel employees
initiated contact with the police, and not vice versa, based on their detection of an apparent
marijuana smell emanating from” Bruce’s room. Id. And even though the government provided
9
Case No. 19-6461, United States v. Powell
a financial incentive to the employees to assist them, that still wasn’t enough to make them the
government’s agents. Id. That’s because “they undoubtedly had the distinct and independent
intent—and, indeed, the obligation—to clean these rooms and empty their trash, just as they would
do with any other room in the hotel.” Id. So the employees didn’t become government agents just
“because the police took an interest in the items they planned to remove from the room during
their normal cleaning activities.” Id.
If the employees in Bruce weren’t government agents, then Zita wasn’t, either. The police
were more actively involved in directing hotel staff in Bruce—and the staff were more focused on
assisting a police investigation—than here. The police in Bruce told the employees what to do and
how to do it. Here, though, they passively stood by for protection as Zita searched the room. The
only evidence that Powell points to as showing agency is the ambiguous interaction between Zita
and the officers just after Zita opened the refrigerator and noticed Powell’s contraband.
But if obeying police direction in sorting trash—and expecting a reward for that
assistance—doesn’t make a person the government’s agent, then neither does asking officers “Can
I take it out?” after discovering a package of drugs and waiting for a response. Besides,
cooperation between Zita and the officers—if this can even be called that—doesn’t necessarily
mean that Zita became the government’s agent. See Howard, 752 F.2d at 227 (“We find, however,
that the insurance company investigator while cooperating with the police was not acting as an
agent of the government.”). That’s because agency requires more. It requires both that police
participate in the search and that the private party intend to assist law enforcement. Lambert,
771 F.2d at 89
. So even if this ambiguous interaction between Zita and the police could amount
to police “instigation” or “participation,” Powell still needs to show that Zita intended to assist a
police investigation. And he fails to do so.
10
Case No. 19-6461, United States v. Powell
At any rate, we doubt the interaction rose to the level of police participation. Bruce,
396 F.3d at 706
. Officers Johnson and Hogan didn’t ask Zita to “look around the room[], report
any suspicious items, or otherwise deviate from [her] typical cleaning routine.”
Id.
Instead, Zita
“initiated contact with the police, and not vice versa, based on [her] detection of an apparent
marijuana smell emanating from” Powell’s room.
Id.
And even assuming the moment at the
refrigerator satisfies the first Lambert prong (which we doubt), Zita still “undoubtedly had the
distinct and independent intent—and, indeed, the obligation—to clean” Powell’s room out.
Id.
So Zita’s search meets neither of the Lambert prongs. And none of Powell’s other
arguments to the contrary is persuasive. Powell states: “All along, Zita was ready to assist police.”
(Appellant Br. at 25.) But the record doesn’t support this argument—she wasn’t there to assist
police, but police were there to protect her during an eviction. And it can hardly be said that Zita
was more “ready to assist police” than the employees in Bruce, whom the government paid for
their assistance. Bruce,
396 F.3d at
702 n.2. Besides, Zita “had the distinct and independent
intent” and obligation to clear Powell’s room out and find evidence to charge him a smoking fee.
Id. at 706
; see
id.
(“[W]hatever motive or incentive the hotel employees might have had to assist
the police in detecting unlawful activity … they undoubtedly had the distinct and independent
intent—and, indeed, the obligation—to clean these rooms and empty their trash, just as they would
do with any other room in the hotel.”).
Powell also argues that Zita was “looking for evidence of illegal activity.” (Appellant Br.
at 26 (quotations omitted).) Maybe so, but that’s not what matters. The court looks at Zita’s intent
when she conducted the search. Lambert,
771 F.2d at 89
. And her intent wasn’t to assist an
11
Case No. 19-6461, United States v. Powell
investigation, but to obtain evidence to further support her decision to evict Powell and charge him
a smoking fee.2
Next, Powell relies on the fact that Johnson and Hogan “stood inside” while Zita went
through Powell’s room, speaking with them all the while. (Appellant’s Br. at 24.) But “when
police are merely assisting a private party, who has authority to search and a legitimate need to do
so, . . . courts are reluctant to exclude resulting evidence.” Howard, 752 F.2d at 227–28 (alteration
in original) (quoting Capra,
501 F.2d at
272 n.4). And mere cooperation between the parties, by
itself, isn’t enough to establish agency. Id. at 227.
Powell fails to shoulder his burden of showing that Zita’s actions meet the Lambert
standard. So we don’t need to reach the issue of whether Powell had a reasonable expectation of
privacy in his hotel room at the time of the search. The Fourth Amendment doesn’t apply to Zita’s
search. We thus affirm the district court’s denial of Powell’s suppression motion.
B.
Powell also challenges his designation as a career offender, although he acknowledged at
oral argument that recent circuit precedent forecloses his challenge. Powell’s presentence
investigation report found, and the district court agreed, that Powell’s convictions under
Mich. Comp. Laws § 333.7401
(2)(a)(iv) were controlled substance offenses. That qualified him for a
career offender sentencing enhancement. Powell objects, and we review his claim de novo. See
United States v. Garth,
965 F.3d 493
, 495 (6th Cir. 2020).
Under the Federal Sentencing Guidelines, a career offender has “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
2
Powell also argues that Zita would have no reason to look for evidence of illegal activity unless
she intended to assist the police. This is wrong. Zita testified that she was searching the room to
find evidence of smoking so she could charge Powell a fee.
12
Case No. 19-6461, United States v. Powell
The Guidelines in turn define a “controlled substance offense” as one that, under state or federal
law, is punishable with a prison term of more than a year and prohibits the manufacture, import,
distribution, or dispensing of a controlled substance, or possession of a controlled substance with
intent to perform any of these acts. Id. § 4B1.2(b). This tracks the Federal Controlled Substances
Act, which makes it unlawful to “manufacture, distribute, or dispense” certain drugs.
21 U.S.C. § 841
(a)(1). And “distribute” in the CSA means “delivery”: the “actual, constructive, or attempted
transfer” of drugs.
Id.
§ 802(8), (11).
A person with multiple controlled-substance offenses faces an increased prison term as a
career offender. Garth, 965 F.3d at 495. So when the probation officer and later the district court
designated Powell a career offender, it caused his offense level under the Sentencing Guidelines
to jump from 26 to 34—which bumped up his sentence range. That designation hinged on Powell’s
multiple convictions for violating
Mich. Comp. Laws § 333.7401
—in particular,
delivery/manufacture of cocaine and heroin. Section 333.7401(1) states: “a person shall not
manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled
substance.”
Normally, to determine whether a statute is a “controlled substance offense” that triggers
the career offender enhancement, we use what’s known as the categorical or modified categorical
approach. Garth, 965 F.3d at 495. But we don’t need to perform that complicated analysis here.
We’ve already held that Powell’s violation of § 333.7401 is a controlled substance offense. United
States v. Thomas,
969 F.3d 583
, 584 (6th Cir. 2020) (per curiam) (holding that delivery of heroin
in violation of § 333.7401 is a controlled substance offense); see also United States v. House,
13
Case No. 19-6461, United States v. Powell
872 F.3d 748
, 753–54 (6th Cir. 2017).3 And we’ve said the same about other states’ statutes with
language virtually identical to our Michigan statute. See Garth, 965 F.3d at 496.
Still, after United States v. Havis,
927 F.3d 382
(6th Cir. 2019) (en banc) (per curiam),
there appears to be some confusion about this in lower courts. Compare United States v. Tillman,
No. 1:07-cv-197,
2020 WL 1950835
, at *3 (W.D. Mich. Apr. 23, 2020) (holding that previous
convictions under § 333.7401(2)(a)(iv) were controlled substance violations) with United States v.
McDougle, No. 19-20323,
2020 WL 3639589
, at *1 (E.D. Mich. July 6, 2020) (holding that the
defendant’s prior conviction under § 333.7401 “does not qualify as a controlled substance offense
under the federal sentencing Guidelines”). To be clear, under a plain reading of the relevant
statutory language and our precedent, Powell’s convictions for violating § 333.7401 are controlled
substance offenses under § 4B1.1(a) and 4B1.2(b) of the Sentencing Guidelines.
The district court didn’t err in designating Powell a career offender. We affirm.
III.
For these reasons, we affirm both the district court’s denial of Powell’s motion to suppress
and its designation of Powell as a career offender.
3
See also United States v. Williams, 762 F. App’x 278, 280–82 (6th Cir. 2019); United States v.
Pittman, 736 F. App’x 551, 555 (6th Cir. 2018); United States v. Brown, 727 F. App’x 126, 129
(6th Cir. 2018); United States v. Tibbs, 685 F. App’x 456, 463–64 (6th Cir. 2017); Hopkins v.
United States, No. 17-1599,
2017 WL 9477084
, at *2 (6th Cir. Nov. 2, 2017) (order); United States
v. Solomon, 592 F. App’x 359, 361–62 (6th Cir. 2014).
14 |
4,638,822 | 2020-12-02 18:00:30.471348+00 | null | http://www.opn.ca6.uscourts.gov/opinions.pdf/20a0375p-06.pdf | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0375p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
PROGRESSIVE RAIL INC.,
│
Plaintiff, │
│
SIEMENS ENERGY, INC., > No. 20-5378
Plaintiff-Appellant, │
│
│
v. │
│
CSX TRANSPORTATION, INC., │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Eastern District of Kentucky at Frankfort.
No. 3:15-cv-00018—Gregory F. Van Tatenhove, District Judge.
Argued: November 19, 2020
Decided and Filed: December 2, 2020
Before: NORRIS, SUTTON, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Iliaura Hands, NIELSEN & TREAS, LLC, Metairie, Louisiana, for Appellant.
Andrew J. Steif, ABEL BEAN LAW P.A., Jacksonville, Florida, for Appellee. ON BRIEF:
Iliaura Hands, NIELSEN & TREAS, LLC, Metairie, Louisiana, Machale A. Miller, MILLER
& WILLIAMSON, LLC, New Orleans, Louisiana, for Appellant. Andrew J. Steif, Kathleen
Wubker, ABEL BEAN LAW P.A., Jacksonville, Florida, Rod D. Payne, BOEHL STOPHER
& GRAVES LLP, Louisville, Kentucky, for Appellee.
No. 20-5378 Progressive Rail Inc. v. CSX Trans., Inc. Page 2
_________________
OPINION
_________________
SUTTON, Circuit Judge. It took a ship and a train to transport two electrical
transformers from Germany to Kentucky. The ocean leg was uneventful, and the transformers
reached Maryland unscathed. But one of the transformers suffered damage during the inland rail
leg to the Bluegrass State. The rail carrier, CSX, sought shelter under a provision of the original
transportation contract that insulated subcontractors from liability. Because the terms of the
contract apply to this dispute, we affirm the district court’s decision to grant summary judgment
to CSX.
I.
The controversy arises out of an international shipment of two electrical transformers
from Bremerhaven, Germany, to Ghent, Kentucky. Siemens AG, a German company, sells
electrical transformers and other industrial manufacturing equipment. It does business in the
United States through a wholly owned subsidiary, Siemens Energy. K+N International arranges
shipping contracts by putting sellers, like Siemens AG, in touch with carriers. It does business in
Germany through a subsidiary, K+N AG, and does business in the United States through another
subsidiary, K+N Inc.
In 2011, Siemens Energy, on behalf of Siemens AG, sold two transformers to Gallatin
Steel, located in Ghent. Siemens AG retained freight forwarder K+N AG to make the necessary
transportation arrangements. K+N AG retained Blue Anchor Line, which issued a bill of lading
for the trip that provided “the terms of the carriage.” Norfolk S. Ry. Co. v. Kirby,
543 U.S. 14
, 19
(2004). Through the bill of lading, Siemens Energy agreed not to sue downstream
subcontractors of Blue Anchor Line for any problems arising out of the transport from Germany
to Kentucky.
K+N AG subcontracted with K-Line to complete the ocean leg of the transportation. And
Siemens Energy contracted with another K+N entity, K+N Inc., to complete the land leg of the
trip from Baltimore to Ghent. K+N Inc. contacted Progressive Rail, a rail logistics coordinator,
No. 20-5378 Progressive Rail Inc. v. CSX Trans., Inc. Page 3
to identify a rail carrier. They settled on CSX, which agreed to complete the trip from Maryland
to Kentucky.
During the rail leg from Maryland to Kentucky, one of the transformers was damaged.
The problem allegedly cost Siemens Energy more than $1,500,000 to fix.
Progressive Rail filed a lawsuit in 2015 in federal district court in Kentucky against CSX,
seeking to limit its liability for these costs. That same year, Siemens Energy filed a lawsuit in
federal district court in Maryland against CSX, seeking recovery for the damage to the
transformer. The actions were consolidated in the Kentucky federal district court.
The district court granted summary judgment for CSX because the rail carrier qualified as
a subcontractor under the Blue Anchor bill and could invoke its liability-shielding provisions.
Siemens Energy appeals.
II.
At stake is whether CSX is liable to Siemens Energy for the damaged transformer. There
is a simple way to think about the dispute and a more complicated way. Either way, CSX is not
liable.
The simple way turns on the terms of the initial transportation contract. Under the
contract, the manufacturer agreed to ship the transformers from Germany to Kentucky. The
contract accounts for the reality that water and land separate Germany from Kentucky, arranging
a trip with segments by ship and by train. And it accounts for the reality that subcontracts would
be arranged for each stretch of the trip. Through it all, the contract says that “[t]he merchant
undertakes . . . that no claim or allegation shall be made against any Sub-Contractor whatsoever,
whether directly or indirectly, which imposes or attempts to impose upon any Sub-Contractor
any liability whatsoever in connection with the Goods or the Carriage of the Goods.” R.94-3 at
3. Because the contract defines Siemens Energy as a “merchant,” it cannot sue a
“Sub-Contractor,” defined to include “rail . . . transport operators” like CSX. R.94-3 at 3. Thus:
CSX is exempt from this lawsuit by Siemens Energy.
No. 20-5378 Progressive Rail Inc. v. CSX Trans., Inc. Page 4
That conclusion does not change if we account for some complications—the maritime
nature of this contract and the terms of art and statutes that go with it: bills of lading, through
bills, multimodal transportation, a Himalaya Clause, a Clause Paramount, the Carriage of Goods
by Sea Act, see
46 U.S.C. § 30701
, the Carmack Amendment, see
49 U.S.C. § 11706
(a), and so
forth.
The parties agree that the Blue Anchor bill of lading is a maritime contract. One
objective of the bill after all is to transport goods by sea. See Kirby,
543 U.S. at 27
. Under the
federal common law for interpreting such contracts, as with most contracts, we respect the terms
used by the parties in the agreement and give that language a fair reading.
Id.
at 22–23, 31;
Royal Ins. Co. of Am. v. Orient Overseas Container Line Ltd.,
525 F.3d 409
, 421 (6th Cir. 2008).
A maritime contract may set the liability rules for an entire trip, including any land-leg
part of the trip, and it may exempt downstream subcontractors. Two things are required to
accomplish both ends. One is that the contract must amount to a “through bill of lading,” which
covers “both the ocean and inland portions of the transport in a single document.” Kawasaki
Kisen Kaisha Ltd. v. Regal-Beloit Corp.,
561 U.S. 89
, 94 (2010). The other is that the contract
must include a “Himalaya Clause,” one that extends liability protection to all subcontractors
along the way.
46 U.S.C. § 30701
(Notes § 7); Kirby,
543 U.S. at 29
. A Himalaya Clause, on
the off chance you are wondering, takes its name from an English case about the steamship
Himalaya, not from the far-above-sea-level mountain range. See Dimond Rigging Co. v. BDP
Int’l, Inc.,
914 F.3d 435
, 439 n.5 (6th Cir. 2019).
With both provisions in place, the downstream subcontractor becomes insulated from
liability. See CNA Ins. Co. v. Hyundai Merch. Marine Co.,
747 F.3d 339
, 361 (6th Cir. 2014);
Fortis Corp. Ins., SA v. Viken Ship Mgmt. AS,
597 F.3d 784
, 792 (6th Cir. 2010). Those are the
rules. How do they apply here?
Is the Blue Anchor bill of lading a through bill? Yes. In the contract’s top-right corner, it
refers to the “Multimodal Transport” covered by the bill, hence contemplating sea and land legs.
R.94-3. The contract defines multimodal transport to happen when “the Carrier has indicated a
place of receipt and/or a place of delivery on the front hereof in the relevant spaces.” R.94-3 at
No. 20-5378 Progressive Rail Inc. v. CSX Trans., Inc. Page 5
3. The carrier did just that. It indicated that Bremerhaven, Germany would be the port of
loading, Baltimore, Maryland the port of discharge, and Ghent, Kentucky the “Place of
Delivery.” R.94-3 at 1; R.96-9 at 1. By its terms, the contract gave the parties every reason to
“anticipate[] that a land carrier’s services would be necessary for the contract’s performance”—
that it contemplated a multimodal trip, that it indeed was a through bill of lading. Kirby,
543 U.S. at 32
.
Does this through bill of lading exempt CSX from liability? Yes. The bill of lading
contains a Himalaya Clause. It first allows the carrier to “sub-contract” any part of the carriage,
including by “rail . . . transport operators” as well as by “any independent contractors, servants or
agents employed by the Carrier in performance of the Carriage and any direct or indirect
sub-contractors, servants or agents thereof, whether in direct contractual privity with the Carrier
or not.” R.94-3 at 3. It then provides every subcontractor with the “benefit of all provisions . . .
benefiting the Carrier,” including the covenant not to sue. R.94-3 at 3. It then provides that the
merchants—defined to include the shipper (Siemens AG) and the consignee (Siemens Energy)—
agree that “no claim or allegation shall be made against any Sub-Contractor whatsoever, whether
directly or indirectly, in connection with the Goods or the Carriage of the Goods.” R.94-3 at 3.
Siemens Energy, a merchant, thus cannot sue CSX, a subcontractor, under the covenant not to
sue.
As is their right, the upstream parties extended liability-limiting provisions to
downstream rail carriers like CSX, opting to take on the risks of transport (and perhaps
insurance) for themselves. See Fortis Corp. Ins.,
597 F.3d at 792
; CNA Ins. Co., 747 F.3d at
372. In the context of a Himalaya Clause like this one, it makes no difference that the
downstream carrier was not in privity of contract with either of the Siemens entities. Kirby,
543 U.S. at 34
.
Trying to head off this conclusion, Siemens Energy maintains that the Blue Anchor bill
of lading is not a through bill. But if that is the case, why does the bill refer to “multimodal”
transportation and to “Ghent, Kentucky”? In reality, nothing in the text of the Blue Anchor bill
helps Siemens Energy’s case. It instead pivots to the claim that extrinsic evidence shows this
language was a “glaring administrative error.” Appellant Br. 26. But we do not use words
No. 20-5378 Progressive Rail Inc. v. CSX Trans., Inc. Page 6
discovered through extrinsic evidence to contradict the direct and most reliable evidence of the
meaning of a contract: the words within its four corners. CITGO Asphalt Refin. Co. v. Frescati
Shipping Co.,
140 S. Ct. 1081
, 1088 (2020); Royal SMIT Transformers BV v. Onego Shipping &
Chartering, BV,
898 F.3d 543
, 551 (5th Cir. 2018). Otherwise, downstream carriers in through
bills of lading could not rely on the language of the upstream contracts. See Kirby,
543 U.S. at
25–27.
For what it is worth, Siemens Energy never offers cognizable evidence of an error
anyway. The sole citation to the record used to support this argument involves the deposition of
a K+N Inc. employee. But the individual was not involved in negotiating or drafting the
contract, making his statement after-the-fact speculation that a mistake occurred. That does not
suffice. “Oops” is not a reason for overriding the terms of a contract. That’s especially so when
employees of Siemens AG and Siemens Energy reviewed the bill of lading and did not notice
any error until this accident occurred.
That CSX issued its own contract for the Maryland-to-Kentucky part of the trip does not
alter this conclusion. The original contract referred to the need for downstream subcontracts.
What was anticipated thus was needed. And giving the contract its special transportation label—
a second bill of lading—hardly makes a difference. It just situates the new bill of lading in the
context of the contract, an arrangement for transportation. More than one bill of lading is not
unusual. Sometimes they are even duplicative. See Regal-Beloit,
561 U.S. at
103–04.
That Siemens AG paid for the ocean leg and Siemens Energy paid for the land leg does
not change things either. Why? The method of payment does not alter the method of liability.
It was still a multimodal bill of lading and still a through bill of lading.
Siemens Energy says that these transportation arrangements usually work differently.
That’s a strange argument, for starters, given that it was a signatory to the original contract. But
even if that is correct, it makes no difference. Sure, Norfolk South Railway Co. v. Kirby,
543 U.S. 14
(2004) and Kawasaki Kisen Kaisha Ltd. v. Regal-Beloit Corp.,
561 U.S. 89
(2010),
involved contracts in which the shipping intermediary retained the rail carrier. But that does not
mean all transportation agreements use this model. Otherwise, there would be few through bills
No. 20-5378 Progressive Rail Inc. v. CSX Trans., Inc. Page 7
of lading from the manufacturer to the buyer. Nor at any rate is it unusual for subsidiaries of a
parent corporation, in this case K+N AG and K+N Inc., to aid one another in carrying out a
contract for multimodal transport. Cooperation between separate and distinct, yet related,
subsidiaries is a mainstay of modern contractual arrangements. Tenn. Valley Auth. v. Exxon
Nuclear Co.,
753 F.2d 493
, 497 (6th Cir. 1985); see United States v. Bestfoods,
524 U.S. 51
, 61
(1998); Schenley Distillers Corp. v. United States,
326 U.S. 432
, 436–37 (1946).
Siemens Energy claims last of all that the covenant not to sue is unenforceable because a
federal statute, the Carriage of Goods by Sea Act, guarantees a certain level of recovery. But it
failed to raise the argument below and thus forfeited it here. See Scottsdale Ins. Co. v. Flowers,
513 F.3d 546
, 552 (6th Cir. 2008). Several courts have rejected the argument anyway. See, e.g.,
Sompo Japan Ins. Co. of Am. v. Norfolk S. Ry. Co.,
762 F.3d 165
, 183 (2d Cir. 2014); Royal
SMIT Transformers, 898 F.3d at 549–50; Fed. Ins. Co. v. Union Pac. R. Co.,
651 F.3d 1175
,
1180 (9th Cir. 2011).
We affirm. |
4,638,824 | 2020-12-02 18:00:37.119477+00 | null | https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/20-35127.pdf | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALEB GARRETT, as Owner and No. 20-35127
Operator of the Crestliner 16-foot
Fishing Boat, Vessel Official D.C. No.
Number MT3657AV, 6:19-cv-0081-SEH
Plaintiff-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted October 29, 2020*
Portland, Oregon
Filed December 2, 2020
Before: A. Wallace Tashima, Susan P. Graber, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Tashima
*
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
2 IN THE MATTER OF GARRETT
SUMMARY**
Admiralty
The panel affirmed the district court’s dismissal, for lack
of jurisdiction, of an admiralty action seeking exoneration
from or limitation of liability for a boating accident that
occurred on Holter Lake, which is located on a stretch of the
Missouri River that is completely obstructed by two dams.
The panel held that a party invoking federal admiralty
jurisdiction over a tort claim must satisfy both a location test
and a connection test. The panel held that the complaint
failed the location test because the boating accident did not
occur on navigable waters, defined as waters that “form in
their ordinary condition by themselves, or by uniting with
other waters, a continued highway over which commerce is
or may be carried on with other States or foreign countries in
the customary modes in which such commerce is conducted
by water.”
COUNSEL
David E. Russo, Lewis Brisbois Bisgaard & Smith LLP, San
Diego, California; Thomas A. Marra, Marra Evenson &
Levine LLP, Great Falls, Montana; for Plaintiff-Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
IN THE MATTER OF GARRETT 3
OPINION
TASHIMA, Circuit Judge:
Caleb Garrett filed a complaint for exoneration from or
limitation of liability under
46 U.S.C. §§ 30501
–30512,
invoking the district court’s admiralty jurisdiction,
28 U.S.C. § 1333
(1). The district court dismissed his complaint for
want of jurisdiction. We have jurisdiction under
28 U.S.C. § 1291
, we review de novo, Rattlesnake Coal. v. U.S. EPA,
509 F.3d 1095
, 1100 (9th Cir. 2007), and we affirm.
“A party seeking to invoke federal admiralty jurisdiction
over a tort claim must satisfy both a location test and a
connection test.” In re Mission Bay Jet Sports, LLC,
570 F.3d 1124
, 1126, (9th Cir. 2009) (internal quotation marks
omitted). Here, the complaint fails the location test. Under
the location test, “[t]he tort must occur on navigable waters.”
Waters are navigable “when they form in their ordinary
condition by themselves, or by uniting with other waters, a
continued highway over which commerce is or may be
carried on with other States or foreign countries in the
customary modes in which such commerce is conducted by
water.” The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870).
It is undisputed that this boating accident occurred on
Holter Lake, that Holter Lake is located on a stretch of the
Missouri River located wholly within Montana, and that this
stretch of river is “completely obstructed by Hauser dam at
one end and by Holter dam at the other,” precluding it from
serving as an artery of interstate commerce. Adams v. Mont.
Power Co., 528 F2d 437, 439 (9th Cir. 1975). Consequently,
Holter Lake is not navigable for purposes of admiralty
jurisdiction, and “[a] cause of action sounding in tort is not
4 IN THE MATTER OF GARRETT
cognizable under admiralty jurisdiction unless the alleged
wrong occurs on navigable waters.”
Id.
Thus, because the
alleged tort here did not occur on navigable waters, the
complaint here is not cognizable under the district court’s
admiralty jurisdiction.1
Garrett urges us to reject Adams’ “outdated view of the
locality test,” but because Adams has not been overruled by
a higher authority, it remains binding precedent. Miller v.
Gammie,
335 F.3d 889
, 893 (9th Cir. 2003) (en banc).
Further, the cases on which Garrett relies are readily
distinguishable. In Sanders v. Placid Oil Co.,
861 F.2d 1374
,
1377–78 (5th Cir. 1988), the river was navigable because it
served as an artery of interstate commerce during significant
portions of the year. In Sawczyk v. U.S. Coast Guard,
499 F. Supp. 1034
, 1039 (W.D.N.Y. 1980), the river was navigable
because it formed an international boundary between the
United States and Canada. In Mission Bay Jet Sports,
570 F.3d at 1127
, the body of water was navigable because it
was “open to the Pacific Ocean,” “subject to the ebb and flow
of tides,” and “neither enclosed nor obstructed.” And in
Taghadomi v. United States,
401 F.3d 1080
, 1086 (9th Cir.
2005), the accident occurred at sea, in waters off Hawaii.
Garrett points out that maritime jurisdiction can extend to
recreational boating.2 See Foremost Ins. Co. v. Richardson,
1
Garrett’s argument that “the Coast Guard has designated Holder
Lake a navigable waterway for purposes of its regulatory jurisdiction,”
citing
33 C.F.R. § 66.05-100
, is inapposite. The regulation has no effect
on federal courts’ admiralty or maritime jurisdiction under 28 US.C.
§ 1333.
2
The accident here involved a recreational fishing boat.
IN THE MATTER OF GARRETT 5
457 U.S. 668
, 674 (1982). Regardless of the type of vessel or
activity involved, however, the tort “must occur on or over
navigable waters.” Taghadomi,
401 F.3d at 1084
. As we
explained in Mission Bay Jet Sports, “[t]he tort must occur on
navigable waters and bear a ‘significant relationship to
traditional maritime activity.’”
570 F.3d at 1126
(emphasis
added) (quoting Foremost,
457 U.S. at 674
).
Because Garrett has not met the location test for
navigable waters, we need not reach the connection test. The
district court properly dismissed this action for lack of
jurisdiction under
28 U.S.C. § 1333
(1).
AFFIRMED. |
4,638,825 | 2020-12-02 18:00:37.229947+00 | null | https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/19-17213.pdf | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN No. 19-17213
FRANCISCO; COUNTY OF SANTA
CLARA, D.C. No.
Plaintiffs-Appellees, 4:19-cv-04717-
PJH
v.
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, a federal
agency; U.S. DEPARTMENT OF
HOMELAND SECURITY, a federal
agency; CHAD F. WOLF, in his
official capacity as Acting Secretary
of the United States Department of
Homeland Security; KENNETH T.
CUCCINELLI, in his official capacity
as Acting Director of United States
Citizenship and Immigration
Services,
Defendants-Appellants.
2 CITY & CTY. OF SAN FRANCISCO V. USCIS
STATE OF CALIFORNIA; DISTRICT OF No. 19-17214
COLUMBIA; STATE OF MAINE;
COMMONWEALTH OF D.C. No.
PENNSYLVANIA; STATE OF OREGON, 4:19-cv-04975-
Plaintiffs-Appellees, PJH
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, a federal agency; UNITED
STATES CITIZENSHIP AND
IMMIGRATION SERVICES, a federal
agency; CHAD F. WOLF, in his
official capacity as Acting Secretary
of the United States Department of
Homeland Security; KENNETH T.
CUCCINELLI, in his official capacity
as Acting Director of United States
Citizenship and Immigration
Services,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
CITY & CTY. OF SAN FRANCISCO V. USCIS 3
STATE OF WASHINGTON; No. 19-35914
COMMONWEALTH OF VIRGINIA;
STATE OF COLORADO; STATE OF D.C. No.
DELAWARE; STATE OF ILLINOIS; 4:19-cv-05210-
STATE OF MARYLAND; RMP
COMMONWEALTH OF
MASSACHUSETTS; DANA NESSEL,
Attorney General on behalf of the OPINION
People of Michigan; STATE OF
MINNESOTA; STATE OF NEVADA;
STATE OF NEW JERSEY; STATE OF
NEW MEXICO; STATE OF RHODE
ISLAND; STATE OF HAWAII,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND
SECURITY, a federal agency; CHAD
F. WOLF, in his official capacity as
Acting Secretary of the United States
Department of Homeland Security;
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES, a federal
agency; KENNETH T. CUCCINELLI, in
his official capacity as Acting
Director of United States Citizenship
and Immigration Services,
Defendants-Appellants.
4 CITY & CTY. OF SAN FRANCISCO V. USCIS
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted September 15, 2020
San Francisco, California
Filed December 2, 2020
Before: Mary M. Schroeder, William A. Fletcher, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge Schroeder;
Dissent by Judge VanDyke
SUMMARY*
Immigration
In cases in which two district courts issued preliminary
injunctions enjoining implementation of the Department of
Homeland Security’s redefinition of the term “public charge,”
which describes a ground of inadmissibility, the panel:
1) affirmed the preliminary injunction of the District Court
for the Northern District of California covering the territory
of the plaintiffs; and 2) affirmed in part and vacated in part
the preliminary injunction of the District Court for the
Eastern District of Washington, vacating the portion of the
injunction that made it applicable nationwide.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
CITY & CTY. OF SAN FRANCISCO V. USCIS 5
Under
8 U.S.C. § 1182
(a)(4)(A), any alien who, in the
opinion of the Secretary of Homeland Security, at the time of
application for admission or adjustment of status, is likely at
any time to become a “public charge,” is inadmissible. No
statute has ever defined the term. In 1999, the Immigration
and Naturalization Service issued guidance (Guidance)
defining the term as one who “is or is likely to become
primarily dependent on the government for subsistence.” The
Guidance expressly excluded non-cash benefits intended to
supplement income.
In August 2019, the Department of Homeland Security
(DHS) issued a rule (the Rule) that defines “public charge” to
include those who are likely to participate, even for a limited
period of time, in non-cash federal government assistance
programs. The Rule defines the term “public charge” to
mean “an alien who receives one or more [specified] public
benefits . . . for more than 12 months in the aggregate within
any 36-month period.” Inadmissibility on Public Charge
Grounds,
84 Fed. Reg. 41,292
(Aug. 14, 2019). The Rule
also directs officials to consider English proficiency in
making the public charge determination.
States and municipalities brought suits in California and
Washington, asserting claims under the Administrative
Procedure Act. The District Court for the Northern District
of California issued a preliminary injunction covering the
territory of the plaintiffs, and the District Court for the
Eastern District of Washington issued a nationwide
injunction. A divided motions panel of this court granted
DHS’s motion for a stay of those injunctions pending appeal.
The panel first concluded that the plaintiffs had
established Article III standing. The plaintiffs are states and
6 CITY & CTY. OF SAN FRANCISCO V. USCIS
municipalities that alleged that the Rule is causing them
continuing financial harm, as lawful immigrants eligible for
federal cash, food, and housing assistance withdraw from
these programs and instead turn to state and local programs.
The panel concluded that this constituted sufficient injury.
Addressing whether the injury is apparent or imminent, the
panel explained that: 1) the Rule itself predicts a 2.5 percent
decrease in enrollment in federal programs and a
corresponding reduction in Medicaid payments of over one
billion dollars per year; 2) the Rule acknowledges that
disenrollment will cause other indirect financial harm to state
and local entities; and 3) declarations in the record show that
such entities are already experiencing disenrollment.
Next, the panel concluded that the interest of the plaintiffs
in preserving immigrants’ access to supplemental benefits is
within the zone of interests protected by the “public charge”
statute. The panel rejected DHS’s suggestion that only the
federal government and individuals seeking to immigrate are
within the zone of interest. The panel also rejected DHS’s
suggestion that the purpose of the public charge statute is to
reduce immigrants’ use of public benefits. Addressing
DHS’s contention that the statute’s overall purpose is to
promote self-sufficiency, the panel concluded that providing
access to better health care, nutrition, and supplemental
housing benefits is consistent with precisely that purpose.
The panel next concluded that the plaintiffs had
demonstrated a high likelihood of success in showing that the
Rule is inconsistent with any reasonable interpretation of the
public charge statute and therefore contrary to law. The
plaintiffs pointed to repeated congressional reenactment of
the provision after it had been interpreted to mean long-term
dependence on government support, noting that the statute
CITY & CTY. OF SAN FRANCISCO V. USCIS 7
had never been interpreted to encompass temporary resort to
supplemental non-cash benefits. The plaintiffs contended that
this repeated reenactment amounted to congressional
ratification of the historically consistent interpretation.
The panel concluded that the history of the provision
supported the plaintiffs’ position, noting that: 1) from the
Victorian Workhouse through the 1999 Guidance, the concept
of becoming a “public charge” has meant dependence on
public assistance for survival; 2) the term had never
encompassed persons likely to make short-term use of in-kind
benefits that are neither intended nor sufficient to provide
basic sustenance; and 3) the Rule introduces a lack of English
proficiency. The panel also noted that the opinions of the
Second Circuit and the Seventh Circuit, in affirming
preliminary injunctions of the Rule, agreed that the Rule’s
interpretation was outside any historically accepted or
sensible understanding of the term.
The panel next concluded that the Rule’s promulgation
was arbitrary and capricious, explaining that DHS: 1) failed
to adequately consider the financial effects of the Rule;
2) failed to address concerns about the Rule’s effect on public
safety, health, and nutrition, as well its effect on hospital
resources and vaccination rates in the general population; and
3) failed to explain its abrupt change in policy from the 1999
Guidance.
The panel also concluded that the remaining preliminary
injunction factors favored the plaintiffs. The panel explained
that the plaintiffs had established that they likely are bearing
and will continue to bear heavy financial costs because of
withdrawal of immigrants from federal assistance programs
and consequent dependence on state and local programs. The
8 CITY & CTY. OF SAN FRANCISCO V. USCIS
panel also observed that the public interest in preventing
contagion is particularly salient during the current global
pandemic, and noted the financial burdens on the plaintiffs
and the adverse effects on the health and welfare of the
immigrant as well as general population.
Finally, the panel concluded that a nationwide injunction
was not appropriate in this case because the impact of the
Rule would fall upon all districts at the same time, and the
same issues regarding its validity have been and are being
litigated in multiple federal district and circuit courts.
Accordingly, the panel vacated that portion of the District
Court for the Eastern District of Washington’s injunction
making it applicable nationwide.
Dissenting, Judge VanDyke, wrote that for the reasons
ably articulated by this court in a December 2019 published
opinion in this case, by the Fourth Circuit in CASA de
Maryland, Inc. v. Trump,
971 F.3d 220
(4th Cir. 2020), and
by a dissenting Seventh Circuit judge in Cook County v. Wolf,
962 F.3d 208
, 234–54 (7th Cir. 2020) (Barrett, J.,
dissenting)—and implied by the Supreme Court’s multiple
stays this year of injunctions virtually identical to those the
majority today affirms—he must respectfully dissent.
CITY & CTY. OF SAN FRANCISCO V. USCIS 9
COUNSEL
Gerard Sinzdak (argued), Daniel Tenny, Joshua Dos Santos,
and Jack Starcher, Appellate Staff; David L. Anderson and
William D. Hyslop, United States Attorneys; Joseph H. Hunt,
Assistant Attorney General; Civil Division, United States
Department of Justice, Washington D.C.; for Defendants-
Appellants.
H. Luke Edwards (argued), Raphael N. Rajendra, Julia B.
Spiegel, and Hannah Kieschnick, Deputy County Counsels;
Laura Trice, Lead Deputy County Counsel; Greta S. Hansen,
Chief Assistant County Counsel; James R. Williams, County
Counsel; Office of the County Counsel, County of Santa
Clara, San Jose, California; Dennis J. Herrera, City Attorney;
Jesse C. Smith, Chief Assistant City Attorney; Ronald P.
Flynn, Chief Deputy City Attorney; Yvonne R. Mere, Chief,
Complex & Affirmative Litigation; Sara J. Eisenberg, Chief
of Strategic Advocacy; Matthew D. Goldberg, Deputy City
Attorney; City Attorney’s Office, San Francisco, California;
for Plaintiffs-Appellees City and County of San Francisco;
County of Santa Clara.
Xavier Becerra, Attorney General; Matthew Rodriguez, Chief
Assistant Attorney General; Michael L. Newman, Senior
Assistant Attorney General; Cherokee DM Melton,
Supervising Deputy Attorney General; Jennifer C. Bonilla,
Lisa Cisneros, Rebekah Fretz, Katherine Lehe, Marissa
Malouff, Julia Harumi Mass, Anita Garcia Velasco, Brenda
Ayon Verduzco, and Anna Rich, Deputy Attorneys General;
Office of the Attorney General, Oakland, California; Karl A.
Racine, Attorney General; Loren L. AliKhan, Solicitor
General; Office of the Attorney General, Washington, D.C.;
Aaron M. Frey, Attorney General; Susan P. Herman, Chief
10 CITY & CTY. OF SAN FRANCISCO V. USCIS
Deputy Attorney General; Office of the Attorney General,
Augusta, Maine; Ellen Rosenblum, Attorney General;
Benjamin Gutman, Solicitor General; Nicole DeFever and
Patricia Garcia Rincon, Attorneys; Oregon Department of
Justice, Salem, Oregon; Josh Shapiro, Attorney General;
Michael J. Fischer, Chief Deputy Attorney General; Aimee
D. Thomson, Deputy Attorney General; Office of the
Attorney General, Philadelphia, Pennsylvania; for Plaintiffs-
Appellees State of California, District of Columbia, State of
Maine, Commonwealth of Pennsylvania and State of Oregon.
Robert W. Ferguson, Attorney General; Noah G. Purcell,
Solicitor General; Tera M. Heintz, Deputy Solicitor General;
Jeffrey T. Sprung, Nathan K. Bays, and Joshua Weissman,
Assistant Attorneys General; Office of the Attorney General,
Seattle, Washington; Mark R. Herring, Attorney General;
Michelle S. Kallen, Deputy Solicitor General; Jessica Merry
Samuels, Assistant Solicitor General; Ryan Spreague Hardy,
Alice Anne Lloyd, and Mamoona H. Siddiqui, Assistant
Attorneys General; Office of the Attorney General,
Richmond, Virginia; Phil Weiser, Attorney General, Eric R.
Olson, Solicitor General; Office of the Attorney General,
Denver, Colorado; Kathleen Jennings, Attorney General;
Aaron R. Goldstein, State Solicitor, Monica A. Horton,
Deputy Attorney General; Department of Justice,
Wilmington, Delaware; Kwame Raoul, Attorney General;
Liza Roberson-Young, Public Interest Counsel; Office of the
Attorney General, Chicago, Illinois; Clare C. Connors,
Attorney General; Lili A. Young, Deputy Attorney General;
Department of the Attorney General, Honolulu, Hawaii;
Brian E. Frosh, Attorney General; Jeffrey P. Dunlap,
Assistant Attorney General; Office of the Attorney General,
Baltimore, Maryland; Maura Healey, Attorney General;
Abigail B. Taylor, Chief, Civil Rights Division; David Ureña,
CITY & CTY. OF SAN FRANCISCO V. USCIS 11
Special Assistant Attorney General; Angela Brooks, Assistant
Attorney General; Office of the Attorney General, Boston,
Massachusetts; Dana Nessel, Attorney General; Fadwa A.
Hammoud, Solicitor General; Toni L. Harris, First Assistant
Attorney General; Michigan Department of Attorney General,
Lansing, Michigan; Keith Ellison, Attorney General; R.J.
Detrick, Assistant Attorney General; Attorney General’s
Office, St. Paul, Minnesota; Aaron D. Ford, Attorney
General; Heidi Parry Stern, Solicitor General; Office of the
Attorney General; Gurbir S. Grewal, Attorney General; Glenn
J. Moramarco, Assistant Attorney General; Office of the
Attorney General, Trenton, New Jersey; Hector Balderas,
Attorney General; Tania Maestas, Chief Deputy Attorney
General; Office of the Attorney General, Santa Fe, New
Mexico; Peter F. Neronha, Attorney General; Lauren E. Hill,
Special Assistant Attorney General; Office of the Attorney
General, Providence, Rhode Island; for Plaintiffs-Appellees
Washington, Virginia, Colorado, Delaware, Illinois,
Maryland, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, Rhode Island, and Hawaii.
Edward T. Waters, Phillip A. Escoriaza, and Amanda N.
Pervine, Feldesman Tucker Leifer Fidell LLP, for Amici
Curiae Public Health, Health Policy, Medicine, and Nursing
Deans, Chairs, and Scholars; American Public Health
Association; and American Academy of Nursing.
R. Adam Lauridsen, Chessie Thacher, Victor H. Yu, and
Nicholas R. Green, Keker Van Nest & Peters LLP, San
Francisco, California for Amici Curiae National Housing Law
Project, Food Research & Action Center, and Center for Law
& Social Policy, National Education Association, and Service
Employees International Union.
12 CITY & CTY. OF SAN FRANCISCO V. USCIS
Nicholas Espíritu, Linton Joaquin, Alvaro M. Huerta, Mayra
B. Joachin, and Max S. Wolson, National Immigration Law
Center, Los Angeles, California; Allon Kedem, Graham
White, Jayce Born, Hillary Anderson, Arnold & Porter Kaye
Scholer LLP, Washington, D.C., for Amici Curiae Immigrant
and Healthcare Service Organizations.
Barbara J. Parker, City Attorney; Maria Bee, Chief Assistant
City Attorney; Eric Bernstein, Senior Deputy City Attorney;
Malia McPherson, Deputy City Attorney; Caroline Wilson,
Fellow; Oakland, California; Michael N. Feuer, City
Attorney; Kathleen A. Kenealy, Chief Deputy City Attorney;
Danielle L. Goldstein, Deputy City Attorney, Los Angeles,
California; Vince Ryan, County Attorney; Robert Hazeltine-
Shedd, Assistant County Attorney; Harris County, Houston,
Texas; Margaret L. Carter and Daniel R. Suvor, O’Melveny
& Myers LLP, Los Angeles, California; Esteban A. Aguilar
Jr., City Attorney, Albuquerque, New Mexico; Anne L.
Morgan, City Attorney, Austin, Texas; Andre M. Davis, City
Solicitor, Baltimore, Maryland; Mark A. Flessner,
Corporation Counsel; Benna Ruth Solomon, Deputy
Corporation Counsel, Chicago, Illinois; Barbara J. Doseck,
Director of Law; John C. Muston, Chief Trial Counsel,
Dayton, Ohio; Crystal Barnes, Acting City Solicitor,
Holyoke, Massachusetts; Howard Phillip Schneiderman,
Senior Deputy Prosecuting Attorney, King County, Seattle,
Washington; Brian E. Washington, County Counsel, County
of Marin, San Rafael, California; Charles J. McKee, County
Counsel; William M. Litt, Anne K. Brereton, and Marina S.
Pantchenko, Deputy County Counsels; County of Monterey,
Salinas, California; Marc. P. Hansen, County Attorney,
Montgomery County, Rockville, Maryland; Marcel S. Pratt,
City Solicitor, Philadelphia, Pennsylvania; Susana Alcala
Wood, City Attorney, Sacramento, California; John C. Beiers,
CITY & CTY. OF SAN FRANCISCO V. USCIS 13
County Counsel; David A. Silverman, Chief Deputy County
Counsel; Ilana Parmer Mandelbaum, Deputy County
Counsel; County of San Mateo, Redwood City, California;
Peter S. Holmes, City Attorney, Seattle, Washington; Michael
Tubbs, Mayor, Stockton, California; Michael Jenkins, City
Attorney, West Hollywood, California; for Amici Curiae 20
Counties, Cities, and Municipalities.
Denny Chan, Justice in Aging, Los Angeles, California;
Regan Bailey and Natalie Kean, Justice in Aging,
Washington, D.C.; Russel L. Hirschhorn and Christopher
Spadaro, Proskauer Rose LLP, New York, New York; for
Amici Curiae Justice in Aging, American Society on Aging,
Caring Across Generations, Jewish Family Service of Los
Angeles, Jewish Federations of North America, National
Asian Pacific Center on Aging, National Council on Aging,
National Hispanic Council on Aging, Mazon, Phi, and Center
for Medicare Advocacy.
Alexandra Wald, Cohen & Gresser LLP, New York, New
York; Elizabeth B. Wydra, Brianne J. Gorod, and Dayna J.
Zolle, Constitutional Accountability Center, Washington,
D.C.; for Amici Curiae Legal Historians.
Simon Sandoval-Moshenberg and Kelly Salzmann, Legal Aid
Justice Center, Falls Church, Virginia; Ariel Nelson and Chi
Chi Wu, National Consumer Law Center, Boston,
Massachusetts; for Amici Curiae National Consumer Law
Center, Legal Aid Justice Center, Public Citizen Inc.,
Consumer Action, Equal Justice Society, Impact Fund,
Secure Justice, Media Alliance, Americans for Financial
Reform Education Fund, and New Economy Project.
14 CITY & CTY. OF SAN FRANCISCO V. USCIS
Richard L. Revesz, Jack Lienke, and Max Sarinsky, New
York, New York, as and for Amicus Curiae Institute for
Policy Integrity.
Debra Gardner, Monisha Cherayil, Sally Dworak-Fisher, and
Tyra Robinson, Baltimore, Maryland, as and for Amicus
Curiae Public Justice Center.
Paul J. Lawrence and Alanna E. Peterson, Pacifica Law
Group, Seattle, Washington, for Amici Curiae Nonprofit
Anti-Domestic Violence and Sexual Assault Organizations.
Diana Kasdan, Pilar Herrero, Amy Myrick, and Elyssa
Spitzer, New York, New York, as and for Amicus Curiae
Center for Reproductive Rights.
Robert M. Loeb, Thomas M. Bondy, Peter E. Davis, and
Emily Green, Orrick Herrington & Sutcliffe LLP,
Washington, D.C.; Douglas N. Letter, General Counsel; Todd
B. Tatelman, Principal Deputy General Counsel; Megan
Barbero, Josephine Morse, Adam A. Grogg, and William E.
Havemann, Deputy General Counsel; Office of General
Counsel, U.S. House of Representatives, Washington, D.C.,
for Amicus Curiae United States House of Representatives.
Harry Lee, Mary Woodson Poag, Johanna Dennehy, Steptoe
& Johnson LLP, Washington, D.C., for Amici Curiae
Immigration Law Professors.
Emily Tomoko Kuwahara, Crowell & Moring LLP, Los
Angeles, California; Austin J. Sutta, Crowell & Moring LLP,
San Francisco, California; for Amici Curiae Asian Americans
Advancing Justice, Asian American Legal Defense and
CITY & CTY. OF SAN FRANCISCO V. USCIS 15
Education Fund, National Women’s Law Center, and
38 Other Amici Curiae.
Sadik Huseny, Brittany N. Lovejoy, Joseph C. Hansen, Tess
L. Curet, and Alexandra B. Plutshack, Latham & Watkins
LLP, San Francisco, California, for Amici Curiae Fiscal
Policy Institute, President’s Alliance on Higher Education
and Immigration, and 12 Other Amici Curiae.
Susan M. Krumplitsch, Elizabeth Stameshkin, and
Priyamvada Arora, Cooley LLP, Palo Alto, California, for
Amici Curiae American Academy of Pediatrics; American
Medical Association; American College of Physicians;
American College of Obstetricians and Gynecologists;
California Medical Association; American Academy of
Pediatrics, California; American Academy of Pediatrics,
Hawaii Chapter; Alaska Chapter of the American Academy
of Pediatrics; Arizona Chapter of the American Academy of
Pediatrics; and Nevada Chapter, American Academy of
Pediatrics.
Paul W. Hughes, Michael B. Kimberly, and Matthew A.
Waring, McDermott Will & Emery LLP, Washington, D.C.,
for Amici Curiae 105 Businesses and Organizations.
16 CITY & CTY. OF SAN FRANCISCO V. USCIS
OPINION
SCHROEDER, Circuit Judge:
The phrase “public charge” enjoys a rich history in
Anglo-American lore and literature, one more colorful than
our American law on the subject. There have been relatively
few published court decisions construing the phrase, even
though our immigration statutes have barred admission to
immigrants who are likely to become a “public charge” for
more than a century. Until recently, the judicial and
administrative guidance has reflected the traditional
concept—rooted in the English Poor Laws and immortalized
by Dickens in the workhouse of Oliver Twist—of incapacity
and reliance on public support for subsistence. The first
comprehensive federal immigration law barred entry to “any
convict, lunatic, idiot, or any person unable to take care of
himself or herself without becoming a public charge.”
Immigration Act of 1882,
22 Stat. 214
, Chap. 376 § 2 (1882).
The 1999 Guidance (the Guidance) issued by the Immigration
and Naturalization Service (INS), the predecessor of the
current agency, defined a “public charge” as one who “is or
is likely to become primarily dependent on the government
for subsistence.” See Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds,
64 Fed. Reg. 28,689
(May 26, 1999).
In 2019, the Department of Homeland Security (DHS)
changed direction, however, and issued a rule (the Rule) that
defines the term to include those who are likely to participate,
even for a limited period of time, in non-cash federal
government assistance programs. The programs designated
by the Rule are not intended to provide for subsistence but
instead to supplement an individual’s ability to provide for
CITY & CTY. OF SAN FRANCISCO V. USCIS 17
basic needs such as food, medical care, and housing.
8 C.F.R. § 212.21
(b). Foreseeable participation for an
aggregate of twelve months in any of the federal programs
within a three-year span renders an immigrant inadmissible
as a public charge and ineligible for permanent resident
status. § 212.21(a). In other words, a single mother with
young children who DHS foresees as likely to participate in
three of those programs for four months could not get a green
card.
Litigation followed in multiple district courts against
DHS and U.S. Citizenship and Immigration Services (USCIS)
as states and municipalities recognized that the immediate
effect of the Rule would be to discourage immigrants from
participating in such assistance programs, even though
Congress has made them available to immigrants who have
been in the country for five years. According to the plaintiffs
in those cases, the Rule’s effect would be to increase
assistance demands on state and local governments, as their
resident immigrants’ overall health and welfare would be
adversely affected by non-participation in federal assistance
programs.
The challenges to the Rule in the district courts resulted
in a chorus of preliminary injunctions holding the Rule to be
contrary to law and arbitrary and capricious under the
Administrative Procedure Act (APA).
5 U.S.C. § 706
(2)(A).
These included the two preliminary injunctions before us, one
issued by the District Court for the Northern District of
California (Northern District) covering the territory of the
plaintiffs, and the other by the District Court for the Eastern
District of Washington (Eastern District) purporting to apply
nationwide. Our court became the first federal appeals court
to weigh in when we granted DHS’s motion for a stay of
18 CITY & CTY. OF SAN FRANCISCO V. USCIS
those injunctions pending appeal. City and Cnty. of San
Francisco v. USCIS,
944 F.3d 773
, 781 (9th Cir. 2019).
Preliminary injunctions were also issued by courts in the
Northern District of Illinois and the Southern District of New
York, and they were stayed by the United States Supreme
Court before appeals could be considered by the circuit courts
of appeals.
When the Seventh Circuit and the Second Circuit did
consider those preliminary injunction appeals, both courts
affirmed the injunctions. Although their reasoning differed
in some respects, both circuits concluded that the Rule’s
definition was both outside any historic or commonly
understood meaning of “public charge,” and arbitrary and
capricious, in concluding that short-term reliance on
supplemental benefits made immigrants dependent on public
assistance within the meaning of the statutory public charge
immigration bar. Cook Cnty., Ill. v. Wolf,
962 F.3d 208
, 229,
232–33 (7th Cir. 2020); New York v. DHS,
969 F.3d 42
,
80–81 (2nd Cir. 2020). The Second Circuit opinion was
unanimous, while a dissenting opinion in the Seventh Circuit
agreed with DHS that those who receive such supplemental
benefits could be considered public charges because, by
receiving some assistance, they are not completely self-
sufficient. Cook Cnty., 962 F.3d at 250–51 (Barrett, J.,
dissenting).
The district court in Maryland also enjoined enforcement
of the Rule and was reversed by a divided decision of the
Fourth Circuit. The majority looked in large measure to the
fact that the Supreme Court had stayed the injunctions in the
Seventh and Second Circuits. CASA de Maryland, Inc. v.
Trump,
971 F.3d 220
, 230 (4th Cir. 2020). In dissent, Judge
King viewed the Rule as outside the longstanding meaning of
CITY & CTY. OF SAN FRANCISCO V. USCIS 19
“public charge” and would have affirmed the injunction. He
also disagreed with the majority about the significance of the
Supreme Court’s stay, explaining that “[i]f the Court's
decision to grant a stay could be understood to effectively
hand victory to the government regarding the propriety of a
preliminary injunction, there would be little need for an
intermediate appellate court to even consider the merits of an
appeal in which the Court has granted a stay.”
Id.
at 281 n.16
(King, J., dissenting) (citing Cook Cnty., 962 F.3d at 234).
To understand the reason for this recent cascade of
litigation after a relatively quiescent statutory and regulatory
history, we review the historical background of the Rule.
Such a review reveals the extent to which the Rule departs
from past congressional and administrative policies.
A. Statutory and Administrative Background
This country has had a federal statutory provision barring
the admission of persons likely to become a “public charge”
since 1882. The Immigration Act of 1882 barred entry to,
among others, “any convict, lunatic, idiot, or any person
unable to take care of himself or herself without becoming a
public charge.” The Immigration and Nationality Act now
provides that “[a]ny alien who, . . . in the opinion of the
[Secretary of Homeland Security] at the time of application
for admission or adjustment of status, is likely at any time to
become a public charge is inadmissible.”
8 U.S.C. § 1182
(a)(4)(A). No statute has ever defined the term. For
over a century, agencies have routinely applied these
provisions in determining admissibility and removal as well
as in issuing visas for entry.
20 CITY & CTY. OF SAN FRANCISCO V. USCIS
In 1996, however, Congress amended the statute to add
five factors for agencies to consider in determining whether
an individual is likely to be a public charge: the non-citizen’s
age; health; family status; assets, resources and financial
status; and education and skills. § 1182(a)(4)(B)(i).
Congress also included a provision requiring applicants to
produce an affidavit of support. See § 1182(a)(4)(C)–(D)
(requiring most family-sponsored immigrants to submit
affidavits of support); § 1183a (affidavit of support
requirements).
At nearly the same time, Congress enacted major reforms
of public benefit programs that, as relevant here, made only
non-citizens with five or more years of residency in the
United States eligible for public benefits such as
Supplemental Nutrition Assistance Program (SNAP) and
Medicaid. Personal Responsibility and Work Opportunity
Reconciliation Act (PRWORA), Pub. L. No. 104-193,
110 Stat. 2105
, 2265 (1996). Previously, lawful immigrants had
generally been eligible for such benefits. Congress thus
simultaneously reduced the number of immigrants eligible for
this assistance and spelled out the factors to be considered in
a public charge determination. The fact that Congress
delineated the factors relevant to the public charge
determination at the same time it adjusted certain immigrants’
eligibility to receive specific supplemental assistance strongly
suggests that Congress did not intend for such assistance to be
considered as one of the public charge factors.
Judicial guidance in interpreting the phrase was
apparently not in need or demand: There are relatively few
such decisions. A leading early Supreme Court case resolved
the important question of whether the adverse economic
conditions in the location where the immigrant intends to live
CITY & CTY. OF SAN FRANCISCO V. USCIS 21
can render an immigrant likely to become a “public charge.”
Gegiow v. Uhl,
239 U.S. 3
(1915). The Supreme Court’s
answer was no because the statute spoke to the permanent
characteristics personal to the immigrant rather than to local
labor market conditions.
Id. at 10
. We followed Gegiow in
Ex parte Sakaguchi,
277 F. 913
(9th Cir. 1922), where we
held that a person temporarily in need of family assistance
should not have been excluded as likely to become a public
charge. We so held because there was an absence of “any
evidence whatever of mental or physical disability or any fact
tending to show that the burden of supporting the appellant is
likely to be cast upon the public.”
Id. at 916
. Thus, our court
in Sakaguchi understood the standard for determining
whether someone is a public charge to be whether the
“burden of support” falls on the public.
Administrative decisions followed the Supreme Court’s
lead by looking to the inherent characteristics of the
individual rather than to external circumstances. The Board
of Immigration Appeals thus held that only an individual with
the inherent inability to be self-supporting is excludable as
“likely to become a public charge” within the meaning of the
statute. Matter of Harutunian, 14 I & N. Dec. 583, 589–90
(BIA 1974); Matter of Vindman,
16 I. & N. Dec. 131
, 132
(B.I.A. 1977); see also New York, 969 F.3d at 69. There has
been corollary administrative recognition that even if an
individual has been on welfare, that fact does not in and of
itself establish the requisite likelihood of becoming a public
charge. An Attorney General decision collected authorities
indicating that it is the totality of circumstances that must be
considered in order to determine whether “the burden of
supporting the alien is likely to be cast on the public.” Matter
of Martinez-Lopez, 10 I & N. Dec. 409, 421–22 (BIA 1962;
A.G. 1964) (citing Sakaguchi, 277 F. at 916). Likely receipt
22 CITY & CTY. OF SAN FRANCISCO V. USCIS
of some public benefits does not automatically render an
immigrant a public charge because the public does not bear
the “burden of support.”
The 1996 amendments, which added factors to be
considered and created the current public charge statutory
provision, caused some confusion as to how big a change
they represented. The INS, the agency then in charge of
administering immigration, decided a regulatory definition
would be helpful. It adopted the 1999 Guidance, the first
regulatory guidance to interpret the rather ancient notion of
“public charge” in light of the myriad, modern forms of
public assistance.
64 Fed. Reg. 28,269
.
The Guidance defined a “public charge” as a non-citizen
who depends on the government for survival, either by receipt
of income or confinement in a public institution. It described
persons “primarily dependent on the government for
subsistence, as demonstrated by either (i) the receipt of public
cash assistance for income maintenance or
(ii) institutionalization for long term care at government
expense.”
Id. at 28,689
. It thus embodied the traditional
notion of primary dependence on the government for either
income or institutional care.
The Guidance went on to identify the types of public
assistance that would typically qualify as evidence of primary
dependence: (1) Supplemental Security Income (SSI);
(2) Temporary Assistance for Needy Families (TANF); (3)
state and local cash assistance programs; and (4) programs
supporting people institutionalized for long-term care.
Id. at 28,692
. The Guidance expressly excluded non-cash benefits
intended to supplement income and not to provide primary
support. The explanation lay with the changing times that
CITY & CTY. OF SAN FRANCISCO V. USCIS 23
were bringing benefits to more and more families to improve
their health and welfare. See
id.
(“[C]ertain federal, state, and
local benefits are increasingly being made available to
families with incomes far above the poverty level, reflecting
broad public policy decisions about improving general public
health and nutrition, promoting education, and assisting
working-poor families in the process of becoming self-
sufficient. Thus, participation in such non-cash programs is
not evidence of poverty or dependence.”).
The Guidance actually encouraged non-citizens to receive
supplemental benefits in order to improve their standard of
living and to promote the general health and welfare. The
Guidance drew a sharp distinction between the receipt of such
supplemental benefits and dependence on the government for
subsistence income that would render the individual a “public
charge.”
Id. at 28
,692–93.
The 2019 Public Charge Rule we review in this case
effectively reversed that policy by making receipt of
supplemental benefits the very definition of a public charge.
See Inadmissibility on Public Charge Grounds,
84 Fed. Reg. 41,292
(Aug. 14, 2019). The Rule defines the term “public
charge” to mean “an alien who receives one or more
[specified] public benefits . . . for more than 12 months in the
aggregate within any 36-month period (such that, for
instance, receipt of two benefits in one month counts as two
months).”
Id. at 41,501
. The public benefits specified by the
Rule include most Medicaid benefits, SNAP benefits, Section
8 housing vouchers and rental assistance, and other forms of
federal housing assistance.
Id.
Any receipt of such a benefit,
no matter how small, will factor into the public charge
determination. The Rule also directs officials to consider
24 CITY & CTY. OF SAN FRANCISCO V. USCIS
English proficiency in making the public charge
determination.
Id. at 41
,503–04.
The Rule was greeted with challenges in federal district
courts throughout the country. We deal with those in this
circuit.
B. The District Court Injunctions
On appeal are two district court decisions granting
preliminary injunctions barring enforcement of the Rule. The
Northern District considered the challenges of California, the
District of Columbia, Maine, Pennsylvania, and Oregon,
consolidated with the challenges brought by the City and
County of San Francisco, and the County of Santa Clara. The
Eastern District heard the challenges brought by Washington,
Virginia, Colorado, Delaware, Hawaii, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, Nevada, New Jersey,
New Mexico, and Rhode Island. Both district courts agreed
that the plaintiffs had standing because they had shown that
they would likely suffer economic harm and other costs and
that their concerns were within the zone of interests of the
statute. Both held that the new definition of “public charge”
was likely not a permissible interpretation of the statute
because it would depart from the longstanding, settled
understanding that a person does not become a public charge
by receiving short-term aid, and must instead demonstrate an
inherent incapacity to provide subsistence. City and Cnty. of
San Francisco v. USCIS,
408 F. Supp. 3d 1057
, 1101 (N.D.
Cal. 2019), Washington v. DHS,
408 F. Supp. 3d 1191
, 1219
(E.D. Wash. 2019). Both found the Rule to be likely arbitrary
and capricious because the agency failed to consider the
burdens the Rule would impose on states and municipalities.
CITY & CTY. OF SAN FRANCISCO V. USCIS 25
The Eastern District issued a nationwide injunction, and the
Northern District declined to do so.
Within a few weeks of the district court rulings, a divided
motions panel of this court, however, stayed both injunctions
pending this appeal. City and Cnty. of SF,
944 F.3d 773
. The
panel majority wrote that DHS was likely to prevail because
the Rule would probably be viewed as a reasonable
interpretation of a statute that had no consistent historical
application and gave the agency “considerable discretion.”
Id. at 796, 799
. Judge Owens dissented in part and would
have denied the stay.
Id.
at 809–10 (Owens, J., dissenting).
The stay was based on a prediction of what this panel
would hold in reviewing the merits of the preliminary
injunctions. The stay in this case was entered at a particularly
early point, less than two months after the district court
injunctions. Almost none of the extensive documentation
relevant to this appeal was before the motions panel. The
brief of the appellant DHS in the Northern District case had
been filed only the day before the panel entered its stay, and
the opening brief in the Eastern District case was not filed
until the day after. Still to come were not only the answering
and reply briefs in both appeals, but two dozen amicus briefs,
many of which we have found very helpful.
At least equally important, no other circuit court opinions
had yet considered the issues. By now we have heard from
three. One of those opinions even discussed and disagreed
with the reasoning of this court’s motions panel stay opinion,
pointing out that it “pinn[ed] the definition of ‘public charge’
on the form of public care provided” in concluding that there
was no consistent interpretation of the Rule. New York,
969 F.3d at 73 (emphasis in original). The court there said
26 CITY & CTY. OF SAN FRANCISCO V. USCIS
our motions panel thereby went “astray.” Id. This was
because the issue was not whether a “public charge” had
always received similar assistance. Id. The issue should have
been whether the “inquiry” under the statute had been
consistent. Id. The Second Circuit concluded the public
charge inquiry had always been whether the non-citizen “is
likely to depend on that [assistance] system.” Id.
We therefore turn to the appeal before us. We deal first
with DHS’s arguments that the plaintiffs may not maintain
the suit because they lack Article III standing or are outside
the zone of interests of the immigration statute in question.
C. Plaintiffs’ Capacity to Maintain the Action
Plaintiffs are states and municipalities that allege the Rule
is causing them to suffer continuing financial harm, as lawful
immigrants eligible for federal cash, food, and housing
assistance withdraw from these programs to avoid the impact
of the Rule. Plaintiffs allege harm because such immigrants
will instead turn to assistance programs administered by the
state and local entities.
DHS argues that such injuries are speculative and
represent only plausible future injury. There is no question
that to have Article III standing to bring this action, the
plaintiffs must allege that they have suffered, or will
imminently suffer, a “concrete and particularized” injury in
fact. Lujan v. Defs. of Wildlife,
504 U.S. 555
, 560 (1992).
There is also no question that an increased demand for aid
supplied by the state and local entities would be such an
injury. The only question is whether such demand is, as of
yet, apparent or imminent.
CITY & CTY. OF SAN FRANCISCO V. USCIS 27
That is not a difficult question to answer. The Rule itself
predicts a 2.5 percent decrease in enrollment in public benefit
programs and a corresponding reduction in Medicaid
payments of over one billion dollars per year. Final Rule,
84 Fed. Reg. at 41,302, 41,463. The Rule itself further
acknowledges that disenrollment will cause other indirect
financial harm to state and local entities by increasing the
demand for uncompensated indigent care. Declarations in the
record show that such entities are already experiencing
disenrollment as a result of the Rule. See City and Cnty. of
SF, 408 F. Supp. 3d at 1122.
DHS nevertheless asserts that the Rule will result in a
long-term cost savings after states compensate for the loss of
federal funds by reforming their operations. But such long-
term reforms would not remedy the immediate financial
injury to the plaintiffs or the harms to the health and welfare
of those individuals affected. As the Second Circuit
explained, “this simplistic argument fails to account for the
fact that the States allege injuries that extend well beyond
reduced Medicaid revenue and federal funding to the States,
including an overall increase in healthcare costs that will be
borne by public hospitals and general economic harms.” New
York, 969 F.3d at 60. Thus, plaintiffs have established Article
III standing.
Those suing under the APA, must also establish that the
interest they assert is at least “arguably within the zone of
interests to be protected or regulated by the statute” in
question. Match-E-Be-Nash-She-Wish Band of Pottawatomi
Indians v. Patchak,
567 U.S. 209
, 224 (2012) (quoting Ass’n
of Data Processing Serv. Orgs., Inc. v. Camp,
397 U.S. 150
,
153 (1970)). The Supreme Court has described the test as
“not meant to be especially demanding” and as “not
28 CITY & CTY. OF SAN FRANCISCO V. USCIS
requir[ing] any ‘indication of congressional purpose to
benefit the would-be plaintiff.’”
Id. at 225
(quoting Clarke v.
Sec. Indus. Ass’n,
479 U.S. 388
, 399–40 (1987)). A
plaintiff’s interest need only be “sufficiently congruent with
those of the intended beneficiaries that the litigants are not
‘more likely to frustrate than to further the statutory
objectives.’” First Nat. Bank & Tr. Co. v. Nat’l Credit Union
Admin.,
988 F.2d 1272
, 1275 (D.C. Cir. 1993) (quoting
Clarke,
479 U.S. at
397 n.12).
The statute in question is, of course, the immigration
statute that renders inadmissible an individual likely to
become a “public charge.”
8 U.S.C. § 1182
(a)(4)(A). DHS
appears to contend that the only entities within the zone of
interests are the federal government itself and individuals
seeking to immigrate, because the provision deals with
immigration and only the federal government controls
immigration. If that were to define the zone of interests
regulated by the statute, the scope of permissible immigration
litigation against the government would be so narrow as to
practically insulate it from many challenges to immigration
policy and procedures, even those violating the Constitution
or federal laws.
DHS suggests that the purpose of the public charge
exclusion is to reduce immigrants’ use of public benefits, and
that the plaintiffs’ suit therefore contradicts this purpose by
seeking to make more federal benefits available. But this
assumes that Congress’s statutory purpose was the same as
DHS’s purpose here, which is the very dispute before us. As
the Second Circuit pointed out, “DHS assumes the merits of
its own argument when it identifies the purpose of the public
charge ground as ensuring that non-citizens do not use public
benefits . . . . Understood in context, [the public charge bar’s]
CITY & CTY. OF SAN FRANCISCO V. USCIS 29
purpose is to exclude where appropriate and to not exclude
where exclusion would be inappropriate.”) New York,
969 F.3d at 62–63.
Moreover, DHS maintains that the statute’s overall
purpose is to promote self-sufficiency. Providing access to
better health care, nutrition and supplemental housing
benefits is consistent with precisely that purpose. See Cook
Cnty., 962 F.3d at 220 (access to affordable basic health care
may promote self-sufficiency); Hilary Hoynes, Diane
Whitmore Schanzenbach & Douglas Almond, Long-Run
Impacts of Childhood Access to the Safety Net, 106 Am.
Econ. Rev. 903, 921 (2016) (access to food stamps in
childhood significantly increases economic self-sufficiency
among women). For these reasons, the interests of the
plaintiffs in preserving immigrants’ access to supplemental
benefits is within the zone of interests protected by the
statute.
We therefore conclude that the district courts correctly
determined that the plaintiffs are entitled to maintain this
action. All of the circuits to consider the validity of this Rule
have reached a similar conclusion. See Cook Cnty., 962 F.3d
at 219–20, CASA de Maryland, 971 F.3d at 240–241, New
York, 969 F.3d at 62–63. We now turn to the question
whether they were entitled to the preliminary injunctions
entered by the district courts.
D. Contrary to Law
Both district courts concluded that the plaintiffs are likely
to prevail in their contention that the Rule violates the
statute’s public charge provision, and that such a conclusion
supports the entry of preliminary injunctions. See Winter v.
30 CITY & CTY. OF SAN FRANCISCO V. USCIS
Nat. Res. Def. Council, Inc.,
555 U.S. 7
, 20 (2008). On
appeal, DHS contends, as it has throughout the litigation, that
the Rule is a permissible interpretation of the statute. The
plaintiffs maintain that the Rule violates the statute because
the Rule is not a reasonable interpretation of the meaning of
“public charge.”
History is a strong pillar supporting the plaintiffs’ case.
Plaintiffs point to repeated congressional reenactment of the
provision after it had been interpreted to mean long-term
dependence on government support, and had never been
interpreted to encompass temporary resort to supplemental
non-cash benefits. Plaintiffs contend that this repeated
reenactment amounts to congressional ratification of the
historically consistent interpretation. DHS disagrees, arguing
that the repeated reenactments reflect congressional intent to
have a flexible standard subject to various executive branch
interpretations.
Our review of the history of the provision in our law
suggests the plaintiffs have the better part of this dispute.
From the Victorian Workhouse through the 1999 Guidance,
the concept of becoming a “public charge” has meant
dependence on public assistance for survival. Up until the
promulgation of this Rule, the concept has never
encompassed persons likely to make short-term use of in-kind
benefits that are neither intended nor sufficient to provide
basic sustenance. The Rule also, for the first time, introduces
a lack of English proficiency as figuring into the equation,
despite the common American experience of children
learning English in the public schools and teaching their
elders in our urban immigrant communities.
8 C.F.R. § 212.22
(b)(5)(ii)(D). Indeed, in Gegiow,
239 U.S. 3
, the
Supreme Court found that the individuals in that case were
CITY & CTY. OF SAN FRANCISCO V. USCIS 31
not likely to become public charges even though they spoke
only Russian.
In New York,
969 F.3d 42
, the Second Circuit essentially
agreed with plaintiffs’ historical analysis. The court
recognized and explained the line of settled judicial and
administrative interpretations of a public charge as one who
is primarily dependent on the government for subsistence.
Id.
at 65–70. The court traced that history in far more detail than
we have outlined and was “convinced” that there was a well-
settled meaning of “public charge” even before congressional
passage of the Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) in 1996, and that was a person
“unable to support herself, either through work, savings, or
family ties.”
Id. at 71
. Receipt of cash benefits may be
considered in deciding whether a person is dependent on the
government but has never been determinative. The Second
Circuit persuasively summarized:
The Plaintiffs do not argue, and we do not
hold, that the receipt of various kinds of
public benefits is irrelevant to the
determination of whether a non-citizen is
likely to become a public charge. But
defining public charge to mean the receipt,
even for a limited period, of any of a wide
range of public benefits – particularly . . . ones
that are designed to supplement an
individual's or family's efforts to support
themselves, rather than to deal with their
likely permanent inability to do so – is
inconsistent with the traditional understanding
32 CITY & CTY. OF SAN FRANCISCO V. USCIS
of what it means to be a “public charge,”
which was well-established by 1996.
Id. at 78
(emphasis removed).
A few months earlier, the Seventh Circuit had come to a
similar conclusion that the Rule violates the statutory
meaning of public charge. Cook Cnty.,
962 F.3d 208
. The
Seventh Circuit differed somewhat in its analysis. After a
historical survey of court decisions and secondary sources, it
determined that the phrase “public charge” was susceptible to
various interpretations.
Id. at 226
. It concluded, however,
that DHS’s interpretation, quantifying the definition to mean
receipt of twelve months’ worth of benefits within three
years, represented an understanding of its authority to define
the phrase that “has no natural limitation.”
Id.
at 228–29. If
DHS’s interpretation were to be accepted, then there is
nothing in the statutory text that would prevent a zero-
tolerance rule, where foreseeable receipt of a single benefit on
one occasion would bar entry or adjustment of status. The
majority forcefully rejected such an interpretation, stating:
We see no warrant in the Act for this
sweeping view. Even assuming that the term
“public charge” is ambiguous and thus might
encompass more than institutionalization or
primary, long-term dependence on cash
benefits, it does violence to the English
language and the statutory context to say that
it covers a person who receives only de
minimis benefits for a de minimis period of
CITY & CTY. OF SAN FRANCISCO V. USCIS 33
time. There is a floor inherent in the words
“public charge,” backed up by the weight of
history.
Id. at 229
.
Although the opinions of the Second Circuit in New York
and the Seventh Circuit in Cook County reflect some
disagreement over whether there was any historically
established meaning of the phrase “public charge,” they
agreed that the Rule’s interpretation of the statute was outside
any historically accepted or sensible understanding of the
term. In commenting on the difference between its historical
review in New York and that of the Seventh Circuit in Cook
County, the Second Circuit noted that the Seventh Circuit had
not included the significant administrative rulings that
preceded the 1996 statute. New York, 969 F.3d at 74.
The New York opinion was unanimous, but the Cook
County opinion was not. The lengthy dissenting opinion in
Cook County focused on other statutory provisions aimed at
preventing entry of persons who could become dependent on
the government. The most significant of these provisions is
the requirement that family-sponsored immigrants, and
employment-sponsored immigrants whose employment is
tied to a family member, must furnish an affidavit from the
sponsor.
8 U.S.C. §§ 1182
(a)(4)(C)–(D). In the affidavit, the
sponsor must agree to support the immigrant at annual
income of at least 125 percent of the poverty level and pay
back the relevant governmental entity in the event the
immigrant receives “any means-tested public benefit.”
8 U.S.C. § 1183a(a)(1)(b).
34 CITY & CTY. OF SAN FRANCISCO V. USCIS
The dissent focused on the fact that the affidavit provision
forces sponsors to bear responsibility for “any means-tested
public benefit” that an immigrant may receive. It concluded
that the affidavit provision reflects Congress’s view that
“public charge” may encompass receipt of supplemental
benefits as well as primary dependence. See Cook Cnty.,
962 F.3d at 246 (Barrett, J., dissenting).
In its focus on the provisions in a related but different
section of the statute, the dissent did not address the
significance of the history of the public charge provision
itself, nor did it address the majority’s objection to the
duration of the receipt of benefits as a standard having no
limiting principle. The dissent concluded only that the choice
of an aggregate of twelve months is “not unreasonable.” Id.
at 253. Moreover, the dissent’s interpretation of the affidavit
requirement’s application here seems to suggest that it would
approve a public charge rule excluding individuals who
received “any means-tested benefit,” no matter how small, as
in line with congressional intent.
In this appeal, DHS also relies upon the affidavit of
support provisions to contend that the Rule is consistent with
the statutory public charge bar. The public charge bar and
affidavit of support provisions were parts of two separate
acts. The two have no historic or functional relationship to
each other. The public charge bar dates back to the 19th
century, embodying an age-old concept of excluding those
who may become primarily dependent on the government.
Congress enacted the affidavit of support provision, however,
in 1996 as part of more recent specific immigration reforms
including the financial responsibilities of families and
employers sponsoring individual immigrants. See PRWORA,
Pub. L. No. 423,
110 Stat. 2271
(1996); IIRIRA, Pub. L. No.
CITY & CTY. OF SAN FRANCISCO V. USCIS 35
104-208,
110 Stat. 3009
(1996). The section of the affidavit
provision that refers to public benefits serves as a post-
admission remedy to help local and federal governments
recoup funds. § 1183a(b). The changes to the affidavit
provisions were aimed at problems with the unenforceability
of such affidavits prior to 1996. Michael J. Sheridan, The
New Affidavit of Support and Other 1996 Amendments to
Immigration and Welfare Provisions Designed to Prevent
Aliens from Becoming Public Charges,
31 Creighton L. Rev. 741
, 743-44, 752-53 (1998) (article by INS Associate General
Counsel).
DHS also points to the provision that permits entry of
battered women without regard to receipt of “any benefits.”
See
8 U.S.C. § 1182
(s). DHS argues that this reflects
Congress’s belief that the receipt of any public benefits would
be a consideration in admission for most other public charge
determinations. Had Congress intended to make non-cash
benefits a factor for admission or permanent residence, it
would have done so directly and not through this ancillary
provision. See Whitman v. Am. Trucking Ass’ns,
531 U.S. 457
, 468 (2001) (Congress does not “hide elephants in
mouseholes”). It is more likely that Congress created this
provision in order to provide sweeping protections for
battered migrant women, as it did throughout Section 1182.
See § 1182(a)(6)(ii), (a)(9)(B)(iii)(IV).
For these reasons we conclude the plaintiffs have
demonstrated a high likelihood of success in showing that the
Rule is inconsistent with any reasonable interpretation of the
statutory public charge bar and therefore is contrary to law.
36 CITY & CTY. OF SAN FRANCISCO V. USCIS
E. Arbitrary and Capricious
Both district courts also ruled that the plaintiffs were
likely to succeed in their contention that the Rule is arbitrary
and capricious. The APA standard in this regard is inherently
deferential. The task of the courts is to ensure that the
agency’s action relied on appropriate considerations,
considered all important aspects of the issue, and provided an
adequate explanation for its decision. The Supreme Court
summed it up in its leading decision, Motor Vehicle Mfrs.
Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co. (“State Farm”),
463 U.S. 29
(1983). The Court explained the general rule:
Normally, an agency rule would be arbitrary
and capricious if the agency has relied on
factors which Congress has not intended it to
consider, entirely failed to consider an
important aspect of the problem, offered an
explanation for its decision that runs counter
to the evidence before the agency, or is so
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.
Id. at 43
.
The plaintiffs argue that DHS failed the test in three
principal respects: It failed to take into account the costs the
Rule would impose on state and local governments; it did not
consider the adverse effects on health, including both the
health of immigrants who might withdraw from programs and
the overall health of the community; and it did not adequately
explain why it was changing the policy that was thoroughly
explained in the 1999 Guidance.
CITY & CTY. OF SAN FRANCISCO V. USCIS 37
1. Disenrollment and Financial Costs
We first turn to DHS’s consideration of the financial
impact of the proposed Rule. During the comment period,
there was repeated emphasis on the financial burdens that
would befall state and local governments because immigrants
fearing application of the Rule would disenroll from the
supplemental programs, even if the Rule did not apply to
them. DHS’s response was a generality coupled with an
expression of uncertainty. It said that, despite these effects,
the Rule’s “overriding consideration” of self-sufficiency
formed “a sufficient basis to move forward.” 84 Fed. Reg. at
41,312. DHS added that there was no way of knowing with
any degree of exactitude how many individuals would
disenroll or how much of a burden it would place on the state
and local governments. Id. at 41,312–13.
DHS provided no analysis of the effect of the Rule on
governmental entities like the plaintiffs in these cases. As the
Northern District found, DHS had not “grapple[d] with
estimates and credible data explained in the comments.” City
and Cnty. of SF, 408 F. Supp. 3d at 1106.
Our law requires more from an agency. A bald
declaration of an agency’s policy preferences does not
discharge its duty to engage in “reasoned decisionmaking”
and “explain the evidence which is available.” State Farm,
463 U.S. at 52
. The record before DHS was replete with
detailed information about, and projections of, disenrollment
and associated financial costs to state and local governments.
See, e.g., Ninez Ponce, Laurel Lucia, & Tia Shimada, How
Proposed Changes to the ‘Public Charge’ Rule Will Affect
Health, Hunger and the Economy in California, 32 (Nov.
2018), https://healthpolicy.ucla.edu/newsroom/Documents/
38 CITY & CTY. OF SAN FRANCISCO V. USCIS
2018/public-charge-seminar-slides-nov2018.pdf (estimating
over 300,000 disenrollments from Medicaid in California
alone); Fiscal Policy Institute, Only Wealthy Immigrants
Need Apply: The Chilling Effects of “Public Charge,”
5 (Nov. 2019), http://fiscalpolicy.org/wp-content/uploads/2
019/11/FINAL-FPI-Public-Charge-2019-MasterCopy.pdf
(estimating over $500 million combined in lost state tax
revenue). DHS was required to “reasonably reflect upon” and
“grapple with” such evidence. Fred Meyers Stores, Inc. v.
NLRB,
865 F.3d 630
, 638 (D.C. Cir. 2017). But DHS made
no attempt to quantify the financial costs of the Rule or
critique the projections offered.
Similarly, DHS’s repeated statements that the Rule’s
disenrollment impacts are “difficult to predict” do not satisfy
its duty to “examine the relevant data” before it. State Farm,
463 U.S. at 43
. The Supreme Court held in State Farm that
an agency may not, without analysis, cite even “‘substantial
uncertainty’ . . . as a justification for its actions.”
Id. at 52
;
see also Ctr. for Biological Diversity v. NHTSA,
538 F.3d 1172
, 1200 (9th Cir. 2008) (rejecting as arbitrary and
capricious agency’s characterization of greenhouse gas
reductions as “too uncertain to support their explicit valuation
and inclusion” in analysis). DHS’s analysis thus fell short of
the standard established by the Supreme Court and
recognized by our circuit. DHS did not adequately deal with
the financial effects of the Rule.
2. Health Consequences
Although DHS wrote the Rule was intended to make
immigrants healthier and stronger, commenters stressed the
Rule’s likely adverse health consequences for immigrants and
the public as a whole, including infectious disease outbreaks
CITY & CTY. OF SAN FRANCISCO V. USCIS 39
and hospital closures. While acknowledging these comments,
DHS concluded, without support, that the Rule “will
ultimately strengthen public safety, health, and nutrition.”
84 Fed. Reg. at 41,314. The Northern District aptly found
that DHS impermissibly “simply declined to engage with
certain, identified public-health consequences of the Rule.”
City and Cnty. of SF, 408 F. Supp. 3d at 1111–12.
Commenters provided substantial evidence that the Rule
would in fact harm public safety, health, and nutrition. DHS
itself repeatedly acknowledged that hospitals might face
financial harms as a result of the Rule, but DHS repeatedly
declined to quantify, assess, or otherwise deal with the
problem in any meaningful way. See, e.g., 84 Fed. Reg. at
41,313–14, 41,384, 41,475, 41,476. This is inadequate and
suggests that DHS’s position was intractable. As the D.C.
Circuit has observed, making some mention of evidence but
then coming to a contrary, “unsupported and conclusory”
decision “add[s] nothing to the agency’s defense of its thesis
except perhaps the implication that it was committed to its
position regardless of any facts to the contrary.” Chem. Mfrs.
Ass’n. v. EPA,
28 F.3d 1259
, 1266 (D.C. Cir. 1994). DHS
responded by excluding certain programs for children and
pregnant women from the ambit of the Rule, but never
addressed the larger concerns about the Rule’s effect on
health as well as on hospital resources.
There were other serious health concerns. For example,
comments demonstrated that the Rule would endanger public
health by decreasing vaccination rates in the general
population. DHS insisted that vaccines would “still be
available” to Medicaid-disenrolled individuals because “local
health centers and state health departments” would pick up
the slack, id. at 41,385, despite objections voiced by such
40 CITY & CTY. OF SAN FRANCISCO V. USCIS
local health centers and state health departments themselves
showing that the Rule will put the populations they
serve—citizens and non-citizens alike—in danger. See, e.g.,
Mass. Dep’t of Pub. Health, Comments on Inadmissibility on
Public Charge Grounds (Dec. 2018), https://www.regulations.
gov/document?D=USCIS-2010-0012-45697; Hilltown Cmty.
Health Ctr., Comments on Inadmissibility on Public Charge
Grounds (Dec. 2018), https://www.regulations.gov/docume
nt?D=USCIS-2010-0012-45675. A decision that “runs
counter to the evidence” or “is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise” is arbitrary and capricious. State Farm,
463 U.S. at 43
. The promulgation of this Rule is such a decision. DHS
claims no expertise in public health, unlike the scores of
expert commenters who weighed in against the Rule.
3. Reversal of Position
Above all, DHS failed to explain its abrupt change in
policy from the 1999 Guidance. An agency reversing a prior
policy “must show that there are good reasons for the new
policy” and provide “a reasoned explanation . . . for
disregarding facts and circumstances that underlay or were
engendered by the prior policy.” FCC v. Fox Television
Stations, Inc.,
556 U.S. 502
, 515–16 (2009). The district
courts below found that DHS had failed to satisfy this
standard. City and Cnty. of SF, 408 F. Supp. 3d at 1111–12;
Washington v. DHS, 408 F. Supp. 3d at 1220.
The 1999 Guidance had been issued after the 1996
statutory amendments setting out the general factors to be
taken into account in making a public charge determination.
The Guidance considered all of the different types of public
assistance governments offered, including programs
CITY & CTY. OF SAN FRANCISCO V. USCIS 41
providing subsistence income and those providing
supplemental benefits. The Guidance expressly provided that
receipt of supplemental assistance for food, healthcare and
housing were not to be considered in assessing an
immigrant’s likelihood of becoming a public charge. As
discussed above, this provision was consistent with over a
century of judicial and administrative decisions interpreting
the public charge bar. The Rule, however, provides that the
prospect of receiving those same supplemental benefits, for
even a few months, renders an individual inadmissible. This
is directly contrary to the 1999 Guidance.
Yet DHS promulgated the Rule without any explanation
of why the facts found, and the analysis provided, in the prior
Guidance were now unsatisfactory. This is a practice the
Supreme Court has rejected: an agency about-face with no
“reasoned explanation . . . for disregarding” the findings
underlying the prior policy. Fox,
556 U.S. at 516
. Here is an
illustration of the about-face. The 1999 Guidance had found
that deterring acceptance of “important health and nutrition
benefits” had yielded “an adverse impact . . . on public health
and the general welfare.” 64 Fed. Reg. at 28,692. In contrast,
DHS now says that the new Rule “will ultimately strengthen
public safety, health, and nutrition.” 84 Fed. Reg. at 41,314.
DHS provides no basis for this conclusion or for its departure
from the empirical assessments underlying the prior policy.
In light of this policy change, coupled with the “serious
reliance interests” engendered by over two decades of
reliance on the Guidance, DHS was required to provide a
“more detailed justification” for the Rule. Fox,
556 U.S. at 515
. DHS provides no justification, other than the repeated
conclusory mantra that the new policy will encourage self-
sufficiency. DHS in effect says that by creating a
42 CITY & CTY. OF SAN FRANCISCO V. USCIS
disincentive for immigrants to use available assistance, the
Rule will “ensur[e] that [admitted immigrants] be self-
sufficient and not reliant on public resources.” 84 Fed. Reg.
at 41,319. DHS does not substantiate, and the record does not
support, this empirical prediction. See, e.g., Hilary Hoynes,
Diane Whitmore Schanzenbach & Douglas Almond, Long-
Run Impacts of Childhood Access to the Safety Net, 106 Am.
Econ. Rev. 903, 930 (finding that having access to food
stamps during childhood leads to “significant improvement
in adult health” and “increases in economic self-sufficiency,”
including decreased welfare participation). Plaintiffs urge
that their experience is contrary to DHS’s conclusion. Also
to the contrary is the experience related in multiple amicus
briefs. See, e.g., Brief for the Institute for Policy Integrity as
Amicus Curiae Supporting Petitioners at 9 (citing evidence
that reductions in SNAP participation increase homelessness);
Brief for National Housing Law Project et al. as Amici Curiae
Supporting Petitioners at 13 (citing evidence that Medicaid
made it easier for recipients to work and find work).
4. Arbitrary and Capricious
In sum, DHS adopted the Rule, reversing prior,
longstanding public policy, without adequately taking into
account its potential adverse effects on the public fisc and the
public welfare. We must conclude that the Rule’s
promulgation was arbitrary and capricious as well as contrary
to law within the meaning of the APA.
5 U.S.C. § 706
(2)(A).
CITY & CTY. OF SAN FRANCISCO V. USCIS 43
F. Remaining Injunction Factors
1. Irreparable Harm
Plaintiffs have shown a likelihood of success on the
merits of their claim that the Rule violates the standards of
the APA in that it is both contrary to law and arbitrary and
capricious. To support entry of an injunction, Plaintiffs must
also show a likely threat of irreparable injury in the absence
of an injunction. Winter,
555 U.S. at 22
. Plaintiffs have
established that they likely are bearing and will continue to
bear heavy financial costs because of withdrawal of
immigrants from federal assistance programs and consequent
dependence on state and local programs.
There is no dispute that such economic harm is sufficient
to constitute irreparable harm because of the unavailability of
monetary damages. See California v. Azar,
911 F.3d 558
,
581 (9th Cir. 2018);
5 U.S.C. § 702
(providing for relief
“other than monetary damages”). DHS counters that such
harm in this case is speculative, amounting to no more than
the possibility of future injury. See Park Vill. Apartment
Tenants Ass’n v. Mortimer Howard Tr.,
636 F.3d 1150
, 1160
(9th Cir. 2011).
We have, however, already seen that in this case such
harm is more than speculative. Plaintiffs have presented
evidence that they are already experiencing harm and DHS
itself has projected significant disenrollment from federal
programs, likely leading to enrollments in state and local
ones. The district courts both made factual findings as to
harm that DHS does not refute with citations to the record.
44 CITY & CTY. OF SAN FRANCISCO V. USCIS
2. Balance of Equities and Public Interest
There was no error in finding that the balance of equities
and public interest support an injunction. The Northern
District pointed to the need for “continuing the provision of
medical services through Medicaid to those who would
predictably disenroll absent an injunction” in light of the
explanations given by “parties and numerous amici . . . [of
the] adverse health consequences not only to those who
disenroll, but to the entire populations of the plaintiff states,
for example, in the form of decreased vaccination rates.” City
and Cnty. of SF, 408 F. Supp. 3d at 1127. The public interest
in preventing contagion is particularly salient during the
current global pandemic.
Although DHS nevertheless argues that it is harmed by
not being able to implement its new definition of public
charge, if it is ultimately successful in defending the merits of
the Rule, the harm will amount to no more than a temporary
extension of the law previously in effect for decades. Given
the financial burdens that plaintiffs have persuasively
demonstrated will befall them as a result of disenrollment
from federal programs, coupled with adverse effects on the
health and welfare of the immigrant as well as general
population, we cannot say the district courts abused their
discretion in finding that the balance of equities and public
interest weigh in favor the injunction.
G. Propriety of a Nationwide Injunction
The Northern District issued a preliminary injunction
limited to the territory of the plaintiff state and local entities
before it. The Eastern District issued a nationwide injunction,
explaining that a more limited injunction would not prevent
CITY & CTY. OF SAN FRANCISCO V. USCIS 45
all the harms alleged. The court was concerned about
protecting immigrants from harm if they moved outside of the
plaintiff jurisdictions, about the economic impact on plaintiff
states if immigrants moved to them to evade the
consequences of the Rule, and about lawful immigrants being
subject to the Rule at points of entry after travel abroad.
Washington, 408 F. Supp. 3d at 1223.
The appropriateness of nationwide injunctions in any case
has come under serious question. See, e.g., DHS v. New York,
140 S Ct. 599, 599–601 (2020) (Gorsuch, J., concurring);
Trump v. Hawaii,
138 S. Ct. 2392
, 2424–29 (2018) (Thomas,
J., concurring). In explaining the limited scope of its
injunction, the Second Circuit questioned the propriety of one
court imposing its will on all:
It is not clear to us that, where contrary views
could be or have been taken by courts of
parallel or superior authority entitled to
determine the law within their own
geographical jurisdictions, the court that
imposes the most sweeping injunction should
control the nationwide legal landscape.
New York, 969 F.3d at 88.
Whatever the merits of nationwide injunctions in other
contexts, we conclude a nationwide injunction is not
appropriate in this case. This is because the impact of the
Rule would fall upon all districts at the same time, and the
same issues regarding its validity have been and are being
litigated in multiple federal district and circuit courts.
46 CITY & CTY. OF SAN FRANCISCO V. USCIS
Accordingly, we vacate that portion of the Eastern
District’s injunction making it applicable nationwide, but
otherwise affirm it.
H. Rehabilitation Act
The plaintiffs also contend that the Rule violates the
Rehabilitation Act, which bans discrimination on the basis of
disabilities.
29 U.S.C. § 794
(a). The Seventh Circuit looked
favorably on this contention, and the Second Circuit
expressly did not address it. Cook Cnty., 962 F.3d at 228,
New York, 969 F.3d at 64 n.20. Because we have held that
the Rule violates the APA as contrary to law and arbitrary
and capricious, we similarly do not address the Rehabilitation
Act.
I. Conclusion
The order of the District Court for the Northern District
of California is AFFIRMED. The order of the District Court
for the Eastern District of Washington is AFFIRMED in
part and VACATED in part. Costs are awarded to the
plaintiffs.
VANDYKE, Circuit Judge, dissenting:
For the reasons ably articulated by our court in a
December 2019 published opinion,1 by the Fourth Circuit in
1
City & County of San Francisco v. USCIS,
944 F.3d 773
(9th Cir.
2019).
CITY & CTY. OF SAN FRANCISCO V. USCIS 47
an August 2020 opinion,2 and by a dissenting Seventh Circuit
judge in a June 2020 opinion (particularly notable for its
erudition)3—and implied by the Supreme Court’s multiple
stays this year of injunctions virtually identical to those the
majority today affirms4—I must respectfully dissent.
2
CASA de Maryland, Inc. v. Trump,
971 F.3d 220
(4th Cir. 2020).
3
Cook County v. Wolf,
962 F.3d 208
, 234–54 (7th Cir. 2020) (Barrett,
J., dissenting).
4
Dep’t of Homeland Sec. v. New York,
140 S. Ct. 599
(2020); Wolf
v. Cook County,
140 S. Ct. 681
(2020). |
4,638,826 | 2020-12-02 18:00:37.316487+00 | null | https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/18-56256.pdf | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BROIDY CAPITAL MANAGEMENT, No. 18-56256
LLC; and ELLIOTT BROIDY,
Plaintiffs-Appellants, D.C. No.
2:18-cv-02421-
v. JFW-E
STATE OF QATAR,
Defendant-Appellee. OPINION
Appeal from the United States District Court for the
Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted February 11, 2020
Pasadena, California
Filed December 2, 2020
Before: Jay S. Bybee, Daniel P. Collins, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Collins
2 BROIDY CAPITAL MGMT. V. STATE OF QATAR
SUMMARY *
Foreign Sovereign Immunities Act
The panel affirmed the district court’s dismissal, for lack
of subject matter jurisdiction under the Foreign Sovereign
Immunities Act, of an action brought against the State of
Qatar, alleging violation of the Computer Fraud and Abuse
Act and other causes of action.
The panel held that neither the FSIA’s exception to
immunity for tortious activity nor its exception for
commercial activity applied, and the State of Qatar therefore
was immune from jurisdiction.
The panel concluded that all of plaintiffs’ tort claims
were barred under the discretionary function exclusion from
the tortious activity exception because the challenged
conduct met two criteria: (1) it was discretionary in nature
or involved an element of judgment or choice; and (2) the
judgment was of the kind that the exception was designed to
shield. The first criterion was met because there was no
showing that Qatari or international law proscribed Qatar’s
actions. The second criterion was met because Qatar’s
alleged actions involved considerations of public policy.
Plaintiffs argued that the commercial activity exception
applied because their action was based upon a commercial
activity carried on in the United States by Qatar. The panel
concluded that plaintiffs’ claims were based on the alleged
*
This summary constitutes no part of the opinion of the court.
It has been prepared by court staff for the convenience of the reader.
BROIDY CAPITAL MGMT. V. STATE OF QATAR 3
surreptitious intrusion into their servers and email accounts
in order to obtain information and the dissemination of such
information to others, including persons in the media, and
this conduct did not qualify as commercial activity within
the meaning of the FSIA.
COUNSEL
Shannen Wayne Coffin (argued), Filiberto Agusti,
Christopher M. Re, Linda C. Bailey, and Mark C. Savignac,
Steptoe & Johnson LLP, Washington, D.C., for Plaintiffs-
Appellants.
David Meir Zionts (argued), Robert A. Long Jr., Jonathan
Gimblett, Lauren K. Moxley, and Megan M. O’Neill,
Covington & Burling LLP, Washington, D.C.; Mitchell A.
Kamin, Neema T. Sahni, and Rebecca G. Van Tassell,
Covington & Burling LLP, Los Angeles, California; for
Defendant-Appellee.
OPINION
COLLINS, Circuit Judge:
Plaintiffs-Appellants Elliott Broidy and his investment
firm, Broidy Capital Management, LLC, sued the State of
Qatar and various other defendants after Qatari agents
allegedly hacked into Plaintiffs’ computer servers, stole their
confidential information, and leaked it to the media in a
retaliatory effort to embarrass Broidy and thereby to
neutralize his ability to continue to effectively criticize the
Qatari regime and its alleged support of terrorism. The
district court dismissed the claims against Qatar for lack of
4 BROIDY CAPITAL MGMT. V. STATE OF QATAR
subject matter jurisdiction, concluding that Qatar was
immune under the Foreign Sovereign Immunities Act
(“FSIA”),
28 U.S.C. § 1602
et seq. Although for somewhat
different reasons, we agree with the district court that subject
matter jurisdiction is lacking under the FSIA, and we
therefore affirm its judgment dismissing this action.
I
A
Qatar’s motion to dismiss relied on a “facial attack on
the subject matter jurisdiction of the district court” under the
FSIA, and therefore, in reviewing de novo the district court’s
order granting that motion, we take as true the well-pleaded
allegations of Plaintiffs’ operative First Amended
Complaint. Doe v. Holy See,
557 F.3d 1066
, 1073 (9th Cir.
2009); see also Holden v. Canadian Consulate,
92 F.3d 918
,
920 (9th Cir. 1996) (de novo review applies to dismissal for
lack of jurisdiction under the FSIA). In addition, we note
that Plaintiffs’ opposition to Qatar’s motion to dismiss
requested leave to amend “in order to incorporate additional
allegations based on Plaintiffs’ discovery efforts,” and the
then-current status of those discovery efforts were set forth
in a contemporaneously filed declaration from Plaintiffs’
counsel. The district court, however, denied leave to amend
based on its conclusion that “discovery had failed to provide
any evidence that might cure or change the Court’s analysis
that it lacks subject matter jurisdiction over Qatar” and that
further amendment would be futile. Because we review that
determination de novo, see Thinket Ink Info. Res., Inc. v. Sun
Microsystems, Inc.,
368 F.3d 1053
, 1061 (9th Cir. 2004), and
because we apply the same standards in evaluating the
sufficiency of a proposed amendment as we do to the
underlying complaint, see Miller v. Rykoff-Sexton, Inc.,
845 F.2d 209
, 214 (9th Cir. 1988), we likewise take as true
BROIDY CAPITAL MGMT. V. STATE OF QATAR 5
for purposes of this appeal the additional well-pleaded
contentions that are contained in that declaration of counsel.
Considering these allegations together, we take the
following factual assertions as true for purposes of this
appeal.
In response to being sanctioned diplomatically and
commercially by several of its neighbors in June 2017 for its
alleged “support for terrorism and its close ties to Iran,”
Qatar launched “a wide-ranging and extremely well-
resourced effort to influence public opinion in the United
States.” In addition to attempting to burnish Qatar’s image
with the U.S. Government, Qatar’s “public relations
campaign” sought to “curtail[] the influence of individuals
that could undermine the standing of the State of Qatar in the
United States.” One of the persons whose influence Qatar
sought to blunt was Elliott Broidy (“Broidy”), the CEO of an
investment firm in Los Angeles called Broidy Capital
Management, LLC (“BCM”). In addition to his business
ventures, Broidy has been active in public affairs, serving on
the Homeland Security Advisory Council for several years
and also taking leadership roles in various political and civic
organizations. Starting in March 2017, Broidy became an
outspoken critic of Qatar, condemning it for its alleged
support for terrorism. His activities were perceived by Qatar
as thwarting its public relations efforts, such as when Broidy
and others persuaded many “American Jewish leaders to
refuse to meet with the Emir” of Qatar when the Emir
traveled to New York in the fall of 2017 for the General
Assembly of the United Nations. Qatar also perceived that
Broidy “‘had been influential’ in shaping the White House’s
views on Qatar.” As a result, one registered agent for Qatar
noted that “Broidy’s name [came] up in Embassy meetings
often,” and Qatar decided to target him in order to limit his
future influence.
6 BROIDY CAPITAL MGMT. V. STATE OF QATAR
The centerpiece of Qatar’s purported targeting of Broidy
was a concerted series of cyberattacks aimed at BCM’s
California-based computer servers. In the latter half of 2017,
Qatar retained the New York-based firm of Global Risk
Advisors LLC (“GRA”) to coordinate that effort, and GRA
thereafter introduced Qatar “to cyber mercenaries in various
countries to coordinate technical aspects of the illegal
intrusion.” Thereafter, through a series of “spearphishing”
attacks aimed at several persons connected to Broidy,
including his executive assistant, the hackers obtained access
to BCM’s Los Angeles-based servers. Beginning on January
16, 2018, and continuing through at least February 25, 2018,
the hackers engaged in “thousands” of instances of
unauthorized access into BCM’s servers and obtained
“Plaintiffs’ private communications, emails, documents and
intellectual property.”
Subsequent forensic investigation revealed that the
hackers were largely able to hide the origins of the attacks
on BCM’s servers by routing their communications through
Virtual Private Networks (“VPNs”). However, two brief
glitches in the VPN system revealed that at least two attacks
in February 2018 originated from an IP address in Doha,
Qatar, that belongs to an internet service provider that is
majority-owned by Qatar. Additional forensic analysis also
established that persons using IP addresses from Vermont
“directly accessed Plaintiffs’ servers 178 times from
February 12, 2018 to February 25, 2018.” Plaintiffs contend
that these Vermont-based attacks were direct, i.e., that they
were not “associated with VPNs or similar anonymization
tools.”
After the hackers obtained Plaintiffs’ private documents,
the stolen materials were converted into PDF format and
distributed to several U.S. media outlets via email and hand-
BROIDY CAPITAL MGMT. V. STATE OF QATAR 7
delivery. A New York-based public relations firm that Qatar
had previously hired in connection with its efforts to
influence U.S. public opinion, Stonington Strategies LLC
(“Stonington”), participated in this plan to “organize and
disseminate Plaintiffs’ stolen emails to media
organizations.” The metadata from some of these leaked
PDFs revealed timestamps from the Central and Eastern
Time Zones, suggesting that the conversion of these files
into PDF format took place in the United States. Plaintiffs
also allege that “many of the instances of unlawful
distribution of illegally obtained [documents] took place
within the United States.”
The result of the dissemination of the stolen materials
was an unflattering series of articles in March 2018 in the
Wall Street Journal, the New York Times, and the
Huffington Post alleging that, in exchange for tens of
millions of dollars, Broidy and his wife had sought to scuttle
a criminal investigation connected to a Malaysian state
investment fund. As a consequence, Plaintiffs suffered
reputational harm and other injuries.
B
Based on these allegations, Plaintiffs filed this action
against Qatar and various other defendants in the district
court. In the operative First Amended Complaint, Plaintiffs
asserted 10 causes of action against Qatar, GRA, Stonington,
and numerous individuals arising from the alleged
unauthorized access into Plaintiffs’ servers and the
subsequent distribution of stolen materials. Specifically,
Plaintiffs alleged that the unlawful intrusion into the servers
to obtain information was actionable under the common law
tort of intrusion upon seclusion, as well as under the civil
suit provisions of the Computer Fraud and Abuse Act,
18 U.S.C. § 1030
(g); the Stored Communications Act,
8 BROIDY CAPITAL MGMT. V. STATE OF QATAR
18 U.S.C. § 2707
(a); the Digital Millennium Copyright Act,
17 U.S.C. § 1203
(a); and the California Comprehensive
Computer Data Access and Fraud Act, see
Cal. Penal Code § 502
(e). Plaintiffs also alleged that the unlawful acquisition
and dissemination of the stolen materials were actionable
under common-law theories of conversion and intrusion
upon seclusion, as well as under the civil actions authorized
by California Penal Code § 496(c) (relating to receipt of
stolen property); the California Uniform Trade Secrets Act,
see
Cal. Civ. Code §§ 3426.2
, 3426.3; and the Defend Trade
Secrets Act,
18 U.S.C. § 1836
(b). The complaint also
alleged a cause of action for “civil conspiracy,” but as the
district court correctly noted, there is no such cause of action
under California law. See, e.g., Kenne v. Stennis,
179 Cal. Rptr. 3d 198
, 210 (Ct. App. 2014) (“Conspiracy is not a
cause of action. It is a theory of liability under which persons
who, although they do not actually commit a tort themselves,
share with the tortfeasor or tortfeasors a common plan or
design in its perpetration.”). Based on these claims,
Plaintiffs sought declaratory, monetary, and injunctive
relief, as well as attorneys’ fees. 1
Qatar filed a motion to dismiss under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(2) for lack of subject
matter and personal jurisdiction, asserting that it was
immune under the FSIA. In opposing Qatar’s motion,
Plaintiffs argued that two of the FSIA’s exceptions—the
tortious activity exception and the commercial activity
exception—defeated Qatar’s claimed immunity. On August
8, 2018, the district court granted Qatar’s motion, finding
both exceptions inapplicable. The tortious activity exception
did not apply, according to the district court, because
Plaintiffs had failed to “allege at least ‘one entire tort’
1
Plaintiffs also sought punitive damages, but such damages are not
available against Qatar. See
28 U.S.C. § 1606
.
BROIDY CAPITAL MGMT. V. STATE OF QATAR 9
occurring in the United States” as required by our decision
in Olsen by Sheldon v. Government of Mexico,
729 F.2d 641
,
646 (9th Cir. 1984), abrogated in part on other grounds as
recognized in Joseph v. Office of Consulate Gen. of Nigeria,
830 F.2d 1018
, 1026 (9th Cir. 1987). The district court
concluded that all of the torts alleged by Plaintiffs were
“premised on allegedly wrongful conduct by Qatar, its
agents, or co-conspirators in gaining access to Plaintiffs’
data servers from outside the United States, making each tort
transnational.” The alleged attacks from Vermont, the court
held, “were merely the continuation of purported conduct
allegedly originating in Qatar and ‘do not demonstrate an
independent tort occurring entirely within the United
States’” (citation omitted). The district court held that the
commercial activity exception was inapplicable because
Qatar’s alleged conduct—hacking and cyberespionage—did
not qualify as “commercial activity” within the meaning of
the FSIA. The district court therefore dismissed the action
against Qatar without leave to amend.
Shortly thereafter, the district court dismissed GRA,
Stonington, and various individual defendants affiliated with
those entities for lack of personal jurisdiction. With the
approval of the district court, Plaintiffs’ claims against three
remaining individual defendants, who had not been served,
were voluntarily dismissed without prejudice and a formal
“final, appealable judgment” was entered by the district
court. See Galaza v. Wolf,
954 F.3d 1267
, 1272 (9th Cir.
2020) (where dismissal of remaining claims without
prejudice is done with “the approval and meaningful
participation of the district court,” the resulting judgment is
final and appealable). Plaintiffs timely appealed the
judgment, challenging only the dismissal of the claims
against Qatar.
10 BROIDY CAPITAL MGMT. V. STATE OF QATAR
II
The FSIA is the “‘sole basis’” for obtaining jurisdiction
over a foreign state in a civil action. Republic of Argentina
v. Weltover, Inc.,
504 U.S. 607
, 611 (1992) (citation
omitted). Under the FSIA, a foreign state “shall be immune
from the jurisdiction of the courts of the United States”
unless one of the Act’s enumerated exceptions applies.
28 U.S.C. § 1604
. This default rule of immunity reflects
“the absolute independence of every sovereign authority”
and also “helps to induce each nation state, as a matter of
international comity, to respect the independence and dignity
of every other, including our own.” Bolivarian Republic of
Venezuela v. Helmerich & Payne Int’l Drilling Co.,
137 S. Ct. 1312
, 1319 (2017) (simplified).
The Act, however, contains a number of explicit
exceptions to this default rule of foreign sovereign
immunity, thereby acknowledging that there are some
limited situations in which a foreign state entity should be
subject to suit. In establishing such exceptions, the FSIA
generally codifies the so-called “restrictive theory” of
sovereign immunity, under which immunity “is recognized
with regard to sovereign or public acts (jure imperii) of a
state, but not with respect to private acts (jure gestionis).”
Siderman de Blake v. Republic of Argentina,
965 F.2d 699
,
705–06 (9th Cir. 1992) (citation and internal quotation
marks omitted). Although this “restrictive theory of
sovereign immunity was developed in the context of
commercial activities of states, . . . it is not limited to claims
arising out of contractual relationships,” and in appropriate
circumstances it also imposes liability upon a foreign state
for torts, such as traffic accidents, committed by that state’s
agents. See Restatement (Third) of the Foreign Relations
Law of the United States § 454 cmt. a (Am. L. Inst. 1987).
BROIDY CAPITAL MGMT. V. STATE OF QATAR 11
The FSIA thus contains separate exceptions that permit
certain actions against foreign states based on their
commercial activities,
28 U.S.C. § 1605
(a)(2), as well as
certain actions based on the tortious acts of their agents,
id.
§ 1605(a)(5). If either of these exceptions is applicable, then
the district court may assert jurisdiction over a “nonjury civil
action against [the] foreign state,” but only “as to any claim
for relief in personam with respect to which the foreign state
is not entitled to immunity.”
28 U.S.C. § 1330
(a); see also
Argentine Republic v. Amerada Hess Shipping Corp.,
488 U.S. 428
, 434 (1989) (“Sections 1604 and 1330(a) work
in tandem: § 1604 bars . . . jurisdiction when a foreign state
is entitled to immunity, and § 1330(a) confers jurisdiction
. . . when a foreign state is not entitled to immunity.”). 2
There is, of course, no dispute that the State of Qatar
qualifies as a “foreign state” for purposes of the FSIA, and it
is therefore immune from jurisdiction here unless Plaintiffs’
claims fit within one of the FSIA’s enumerated exceptions.
Plaintiffs invoke both the tortious activity exception and the
commercial activity exception, and it is their burden to make
an initial showing as to the applicability of one or both of
them. Packsys, S.A. v. Exportadora de Sal, S.A.,
899 F.3d 1081
, 1088 (9th Cir. 2018). We agree with the district court
that as a matter of law neither exception is applicable here,
although our reasoning differs in some respects from the
district court’s. We discuss each exception in turn.
2
Plaintiffs are therefore wrong in suggesting that the district court
can assert jurisdiction over this entire action against Qatar so long as any
one of their claims fits within an exception in the FSIA. This “foot-in-
the-door” approach cannot be reconciled with the limited grant of
jurisdiction in § 1330(a). See Simon v. Republic of Hungary,
812 F.3d 127
, 141 (D.C. Cir. 2016) (courts must “make FSIA immunity
determinations on a claim-by-claim basis”).
12 BROIDY CAPITAL MGMT. V. STATE OF QATAR
A
Subject to two enumerated exclusions, the FSIA’s
tortious activity exception allows a foreign sovereign to be
sued in any case:
in which money damages are sought against
a foreign state for personal injury or death, or
damage to or loss of property, occurring in
the United States and caused by the tortious
act or omission of that foreign state or of any
official or employee of that foreign state
while acting within the scope of his office or
employment.
28 U.S.C. § 1605
(a)(5); see also Liu v. Republic of China,
892 F.2d 1419
, 1425 (9th Cir. 1989). Although the actual
words of the statute require only that a claimant’s injury
occur in the United States, see
28 U.S.C. § 1605
(a)(5), the
Supreme Court has stated that this exception “covers only
torts occurring within the territorial jurisdiction of the United
States,” Amerada Hess,
488 U.S. at 441
. See also
Asociación de Reclamantes v. United Mexican States,
735 F.2d 1517
, 1524 (D.C. Cir. 1984) (Scalia, J.) (“Although
the statutory provision is susceptible of the interpretation
that only the effect of the tortious action need occur here,
where Congress intended such a result elsewhere in the FSIA
it said so more explicitly.”). Accordingly, we have held that,
while not “every aspect of the tortious conduct” must “occur
in the United States,” the exception in § 1605(a)(5) applies
only where the plaintiff alleges “at least one entire tort
occurring in the United States.” Olsen,
729 F.2d at 646
.
The parties vigorously dispute how Olsen’s “entire tort”
rule applies to Plaintiffs’ allegations in this case, but we find
it unnecessary to address this issue because Plaintiffs’ claims
BROIDY CAPITAL MGMT. V. STATE OF QATAR 13
fall within one of § 1605(a)(5)’s express exclusions from the
tortious activity exception. Johnson v. Riverside Healthcare
Sys., LP,
534 F.3d 1116
, 1121 (9th Cir. 2008) (“[W]e may
affirm based on any ground supported by the record.”). In
addition to preserving a foreign sovereign’s immunity over
a specified list of torts, § 1605(a)(5) also expressly precludes
any tort claim against a foreign state “based upon the
exercise or performance or the failure to exercise or perform
a discretionary function regardless of whether the discretion
be abused.”
28 U.S.C. § 1605
(a)(5)(A). We conclude that
all of Plaintiffs’ tort claims are barred under this
“discretionary function” exclusion from the FSIA’s tortious
activity exception.
As we have previously observed, “[t]he language of the
discretionary function exclusion closely parallels the
language of a similar exclusion in the Federal Tort Claims
Act (‘FTCA’), so we look to case law on the FTCA when
interpreting the FSIA’s discretionary function exclusion.”
Holy See,
557 F.3d at 1083
. Accordingly, the FSIA’s
discretionary function exclusion applies if the challenged
conduct “meets two criteria: (1) it is ‘discretionary in nature’
or ‘involve[s] an element of judgment or choice’ and (2) ‘the
judgment is of the kind that the discretionary function
exception was designed to shield.’”
Id.
at 1083–84 (quoting
United States v. Gaubert,
499 U.S. 315
, 322–23 (1991)).
Although Qatar ultimately has the burden to establish that
the exclusion applies, that burden arises only if Plaintiffs
have “‘advance[d] a claim that is facially outside the
discretionary function exception.’” Id. at 1084 (citation
omitted). We conclude that the particular tortious conduct
that Plaintiffs allege in this case facially satisfies both of
Gaubert’s criteria, and that the discretionary function
exclusion therefore applies.
14 BROIDY CAPITAL MGMT. V. STATE OF QATAR
1
As the Supreme Court has recognized, “conduct cannot
be discretionary unless it involves an element of judgment
or choice.” Berkovitz v. United States,
486 U.S. 531
, 536
(1988). Accordingly, the discretionary function exclusion
cannot apply when an applicable “statute, regulation, or
policy specifically prescribes a course of action.”
Id.
(emphasis added). Put another way, a defendant is not
exercising discretion if it is “bound to act in a particular
way.” Gaubert,
499 U.S. at 329
. Applying similar
reasoning, we have also held that the FTCA’s comparable
discretionary function exception does not apply when the
defendants’ assertedly discretionary actions are specifically
proscribed by applicable law. Fazaga v. FBI,
965 F.3d 1015
, 1065 (9th Cir. 2020) (conduct that violates “federal
constitutional or statutory directives” is not within the
FTCA’s discretionary function exception); Tobar v. United
States,
731 F.3d 938
, 946 (9th Cir. 2013) (same where
conduct violated agency’s “own regulations and policies”
(emphasis omitted)); Galvin v. Hay,
374 F.3d 739
, 758 (9th
Cir. 2004) (“‘[F]ederal officials do not possess discretion to
violate constitutional rights.’” (citation omitted)). Plaintiffs
contend that “[t]his principle is dispositive here,” because
their operative complaint alleges multiple violations of
specific federal and state statutory prohibitions. We
disagree.
In drawing upon the relevant caselaw applicable to the
U.S. Government under the FTCA’s discretionary function
exception, we must apply those principles mutatis mutandis
in construing the scope of the similar language used in the
FSIA with respect to a foreign state. The discretion of the
U.S. Government is, of course, cabined by the applicable
limitations in the U.S. Constitution, federal statutes and
BROIDY CAPITAL MGMT. V. STATE OF QATAR 15
regulations, and any other relevant binding source of law.
But the policy discretion of a foreign sovereign is not
evaluated by those same constraints, but rather by the
corresponding limitations that bind that sovereign, whether
contained in its own domestic law or (we will assume) in
applicable and established principles of international law.
We drew precisely this distinction in Risk v. Halvorsen,
936 F.2d 393
(9th Cir. 1991), in which we upheld Norway’s
immunity under the FSIA on the ground that the
discretionary function exclusion applied to the challenged
actions of Norwegian officials, despite the fact that those
actions “may constitute a violation of California criminal
law.”
Id.
at 396–97. We noted that we had previously held
that the FSIA’s discretionary function exclusion “‘is
inapplicable when an employee of a foreign government
violates its own internal law,’” but we concluded that this
principle did not apply in Risk, because there was “no
assertion that the Norwegian officials violated any
Norwegian law.”
Id. at 396
(quoting Liu,
892 F.2d at 1431
)
(emphasis added); see also Liu,
892 F.2d at 1431
(discretionary function exclusion did not apply where, in
ordering assassination, Taiwanese official had violated
Taiwanese law). And Risk similarly distinguished Letelier
v. Republic of Chile,
488 F. Supp. 665
(D.D.C. 1980), on the
ground that it involved an alleged assassination in violation
of international law. Risk,
936 F.2d at 396
(noting that
Letelier addressed “‘action that is clearly contrary to the
precepts of humanity’”); cf. MacArthur Area Citizens Ass’n
v. Republic of Peru,
809 F.2d 918
, 922 n.4 (D.C. Cir. 1987)
(similarly distinguishing Letelier in a case involving Peru’s
alleged criminal violation of D.C. zoning laws in
establishing a chancery, noting that “it is hardly clear that,
even if a criminal act were shown, it would automatically
prevent designation of Peru’s acts as discretionary”).
16 BROIDY CAPITAL MGMT. V. STATE OF QATAR
The alleged actions that Qatar took here have not been
shown to violate either Qatari law or applicable international
law. The parties do not dispute that, under Qatari law, the
various criminal prohibitions against hacking, theft, or
disclosure of trade secrets do not bind government agents
acting in accordance with official orders. Indeed, it would
perhaps be surprising if the domestic law of any country
prohibited its own government agents from engaging in
covert cyberespionage and public relations activities aimed
at foreign nationals in other countries. Nor have the specific
forms of cyberespionage alleged here been shown to violate
judicially enforceable principles of international law. Cf.
Letelier,
488 F. Supp. at 673
. The status of peacetime
espionage under international law is a subject of vigorous
debate, see, e.g., Patrick C.R. Terry, “The Riddle of the
Sands”—Peacetime Espionage and Public International
Law, 51 Geo. J. Int’l L. 377, 380–85 (2020); A. John Radsan,
The Unresolved Equation of Espionage and International
Law, 28 Mich. J. Int’l L. 595, 601–07 (2007), and the parties
have not pointed us to any sufficiently clear rule of
international law that would impose a mandatory and
judicially enforceable duty on Qatar not to do what it
allegedly did here. Cf. Sosa v. Alvarez-Machain,
542 U.S. 692
, 724–31 (2004) (explaining why courts should exercise
great caution before purporting to identify and enforce
norms of international law).
In the absence of a showing that Qatari or international
law proscribes Qatar’s actions here, that alleged conduct
involves an exercise of discretion by Qatar that satisfies the
first Gaubert criterion. Cf. Fazaga, 965 F.3d at 1024, 1065
(to the extent that “Defendants did not violate any federal
constitutional or statutory directives, the discretionary
function exception will bar Plaintiffs’ FTCA claims”
BROIDY CAPITAL MGMT. V. STATE OF QATAR 17
concerning alleged “covert surveillance program” aimed at
mosque (emphasis added)).
2
There is, however, a further element that must be
satisfied before the FSIA’s discretionary function exclusion
may be applied, viz., the “judgment” involved must be “‘of
the kind that the discretionary function exception was
designed to shield.’” Holy See,
557 F.3d at
1083–84
(citation omitted). This criterion is satisfied if the challenged
“‘governmental actions and decisions’” are “‘based on
considerations of public policy.’”
Id. at 1084
(citation
omitted); see also Risk,
936 F.2d at 395
(challenged acts
must be “‘grounded in social, economic, and political
policy’” (citation omitted)). Thus, “[a]lthough driving
requires the constant exercise of discretion, the official’s
decisions in exercising that discretion can hardly be said to
be grounded in regulatory policy.” Gaubert,
499 U.S. at
325
n.7. Here, there can be little doubt that Qatar’s alleged
actions involved considerations of public policy that are
sufficient to satisfy Gaubert’s second criterion.
Plaintiffs’ complaint alleges that, in response to a
diplomatic and economic boycott, Qatar undertook the
challenged actions as one component of a public-relations
strategy “to influence public opinion in the United States”
by “curtailing the influence of individuals,” such as Broidy,
who “could undermine the standing of the State of Qatar in
the United States.” Indeed, although the Letelier court found
that the discretionary function exclusion did not apply to the
challenged assassination in that case because it “clearly”
violated international law—i.e., because it failed what we
have described as Gaubert’s first criterion—that court also
expressly acknowledged that Chile’s act, however
reprehensible it might have been, was “one most assuredly
18 BROIDY CAPITAL MGMT. V. STATE OF QATAR
involving policy judgment.”
488 F. Supp. at 673
; see also
Macharia v. United States,
334 F.3d 61
, 67 (D.C. Cir. 2003)
(because matters of embassy location and security involved
considerations that “‘affect foreign relations,’” they satisfied
Gaubert’s “second step” (citation omitted)). We therefore
conclude that Qatar’s alleged conduct here involved “the
type of discretionary judgments that the exclusion was
designed to protect.” Holy See,
557 F.3d at 1084
.
Because Plaintiffs have failed to “‘advance a claim that
is facially outside the discretionary function’” exclusion, the
tortious activity exception to foreign sovereign immunity in
§ 1605(a)(5) is inapplicable here as a matter of law. Id.
(citation omitted).
B
Plaintiffs also contend that the FSIA’s commercial
activity exception allows the U.S. courts to assert
jurisdiction over Plaintiffs’ claims against Qatar, but we
again disagree.
Section 1605(a)(2) contains three separate clauses that
set forth three alternative variations for asserting jurisdiction
over a foreign state based on its commercial activities. In
this court, Plaintiffs rely only on one of the formulations,
namely, the one that allows jurisdiction over a foreign state
in a “case . . . in which the action is based upon a commercial
activity carried on in the United States by the foreign state.”
28 U.S.C. § 1605
(a)(2). In applying this clause, we must
first identify what are the activities on which “the action is
based” and then determine whether those activities are
“commercial” within the meaning of the FSIA.
Id.
Applying this two-step analysis, we conclude that the
challenged actions of Qatar here do not constitute
“commercial activity.”
BROIDY CAPITAL MGMT. V. STATE OF QATAR 19
As noted, the “crucial” first step “in determining whether
the basis of this suit was a commercial activity is defining
the ‘act complained of here.’” MOL, Inc. v. People’s
Republic of Bangladesh,
736 F.2d 1326
, 1328 (9th Cir.
1984) (citation omitted); see also Saudi Arabia v. Nelson,
507 U.S. 349
, 356 (1993). “Although the Act contains no
definition of the phrase ‘based upon,’” the Supreme Court
has held that the “phrase is read most naturally to mean those
elements of a claim that, if proven, would entitle a plaintiff
to relief under his [or her] theory of the case.” Nelson,
507 U.S. at 357
. As explained earlier, all of Plaintiffs’
claims are based upon either or both of two types of
activities: (1) the surreptitious intrusion into Plaintiffs’
servers and email accounts in order to obtain information;
and (2) the dissemination of such information to others,
including persons in the media. See supra at 7–8. Plaintiffs
point out that these alleged activities are connected to other
allegedly commercial conduct (such as the hiring of a public
relations firm), but that other conduct is not what the suit “is
based” on.
28 U.S.C. § 1605
(a)(2). Even taking as true
Plaintiffs’ allegations that Qatar entered into various
contracts in the United States to carry out its operations,
“those facts alone entitle [Plaintiffs] to nothing under their
theory of the case,” and these activities therefore “are not the
basis for [Plaintiffs’] suit.” Nelson,
507 U.S. at 358
. It is the
“torts, and not the arguably commercial activities that
preceded [or followed] their commission,” that “form the
basis for [Plaintiffs’] suit.”
Id.
The next question, then, is whether Qatar’s “tortious
conduct itself . . . qualif[ies] as ‘commercial activity’ within
the meaning of the Act.” Nelson,
507 U.S. at 358
. The FSIA
defines “commercial activity” as “either a regular course of
commercial conduct or a particular commercial transaction
or act.”
28 U.S.C. § 1603
(d). The statute further explains
20 BROIDY CAPITAL MGMT. V. STATE OF QATAR
that the “commercial character of an activity shall be
determined by reference to the nature” of the activity, “rather
than by reference to its purpose.”
Id.
In assessing whether
the “nature” of particular state actions is commercial, courts
look to whether they “are the type of actions by which a
private party engages in trade and traffic or commerce.”
Weltover,
504 U.S. at 614
(simplified); see also Adler v.
Federal Republic of Nigeria,
219 F.3d 869
, 875–76 (9th Cir.
2000) (considering whether the defendants’ challenged
conduct was “what every private party does in the open
market (notwithstanding the fact that their precise
undertakings were illegal)”); Cicippio v. Islamic Republic of
Iran,
30 F.3d 164
, 167 (D.C. Cir. 1994) (“[W]e take from
Weltover the key proposition that in determining whether a
given government activity is commercial under the [FSIA],
we must ask whether the activity is one in which commercial
actors typically engage.”). “[W]hether a state acts ‘in the
manner of’ a private party is a question of behavior, not
motivation.” Nelson,
507 U.S. at 360
(citation omitted).
We have little difficulty in concluding that, without
more, a foreign government’s conduct of clandestine
surveillance and espionage against a national of another
nation in that other nation is not “one in which commercial
actors typically engage.” Cicippio,
30 F.3d at 167
; see also,
e.g., Democratic Nat’l Comm. v. Russian Fed’n,
392 F. Supp. 3d 410
, 429 (S.D.N.Y. 2019) (“Transnational
cyberattacks are not the ‘type of actions by which a private
party engages in trade and traffic or commerce.’” (citation
omitted)). A foreign government engaged in such conduct
is not exercising “powers that can also be exercised by
private citizens,” but rather is employing powers that—
however controversial their status may be in international
law—are “peculiar to sovereigns.” Nelson,
507 U.S. at 360
(citations and internal quotation marks omitted).
BROIDY CAPITAL MGMT. V. STATE OF QATAR 21
Plaintiffs point out that there are bad actors in the
commercial sphere who employ similar tactics, but any
application of this argument to the particular facts of this
case seems difficult to reconcile with Nelson. In that case,
plaintiff Scott Nelson was allegedly arrested, imprisoned,
and beaten by police officials in Saudi Arabia, assertedly in
retaliation for his reporting of safety defects in the state-
owned hospital at which he worked.
507 U.S. at
352–53.
Nelson and his wife sued both the Saudi government and the
hospital (among others), claiming that the commercial
activity exception applied in light of the employment-related
context in which the conduct occurred.
Id. at 358
. After
identifying the tortious conduct—e.g., the arrest,
imprisonment, and beatings—as “the basis for the Nelsons’
suit,” the Court held that this conduct “fail[ed] to qualify as
‘commercial activity.’”
Id.
Emphasizing that the actual
tortious conduct was an exercise of the police power, rather
than an act that can be “‘performed by an individual acting
in his own name,’” the Court held that, “however monstrous
such abuse undoubtedly may be, a foreign state’s exercise of
the power of its police has long been understood for purposes
of the restrictive theory as peculiarly sovereign in nature.”
Id.
at 361–62 (citation omitted). Just as exercising police
and penal powers “is not the sort of action by which private
parties can engage in commerce,”
id. at 362
, a foreign
government’s deployment of clandestine agents to collect
foreign intelligence on its behalf, without more, is the sort of
peculiarly sovereign conduct that all national governments
(including our own) assert the distinctive power to perform.
Because the conduct Qatar allegedly engaged in here “‘can
be performed only by the state acting as such,’”
id.
(emphasis added) (citation omitted), it is not “commercial”
for purposes of the commercial activity exception. And we
agree with the D.C. Circuit to the extent that it concluded
that a foreign government’s use of “irregular operatives” to
22 BROIDY CAPITAL MGMT. V. STATE OF QATAR
perform uniquely sovereign actions, such as occurred in this
case, is not sufficient to distinguish Nelson. Cicippio,
30 F.3d at 168
.
Having determined that Qatar’s conduct of the espionage
action against Plaintiffs was not a commercial activity, we
also reject Plaintiffs’ argument that Qatar’s subsequent use
of the materials it obtained constituted a “commercial”
activity within the meaning of the FSIA. Although Plaintiffs
contend that the materials that were accessed and
disseminated included commercially sensitive materials,
including trade secrets, there is no allegation that Qatar made
commercial use of the materials. Plaintiffs contend that any
consideration of Qatar’s subsequent uses is an improper
consideration of purpose, but we disagree. The Supreme
Court confirmed in Weltover that it was not precluding
consideration of the “context” of a sovereign’s actions, and
what a foreign sovereign does with covertly obtained
intelligence is certainly an aspect of the “outward form of
the conduct that the foreign state performs.”
504 U.S. at 615, 617
. To paraphrase the D.C. Circuit, when the outward
actions are judged in context, there is an objective difference
between (1) stealing the trade secrets of a “commercial
rival” and deploying them against that rival and (2) stealing
confidential materials from a policy critic and publishing
embarrassing excerpts from them. Cf. Cicippio,
30 F.3d at 168
(“Perhaps a kidnapping of a commercial rival could
be thought to be a commercial activity.”). Here, the context
confirms that Qatar was not acting “in the manner of a
private player” in the marketplace. Weltover,
504 U.S. at 614
. Although the materials were of commercial value to
Plaintiffs, the statute’s focus is on whether the particular
actions that the foreign sovereign took amounted to the
conduct of “‘trade and traffic or commerce,’”
id.
(citation
BROIDY CAPITAL MGMT. V. STATE OF QATAR 23
omitted), and we agree with the district court that they were
not.
III
Our ruling in this case is neither an affirmation that the
alleged conduct actually occurred nor an endorsement of any
such conduct. Our task is to assume the allegations to be true
and then to apply the limitations of the FSIA according to
the statute’s plain terms. Having done so, we conclude that
the FSIA bars Plaintiffs’ claims against Qatar here.
The judgment of the district court is AFFIRMED. |
4,489,461 | 2020-01-17 22:01:51.642691+00 | Morris | null | *222OPINION.
MoRRis:
The facts briefly restated are that the petitioner’s distributive income from the estate of William Scott Pyle was, through error, overstated for 1920 by $10,637.56, which error, when discovered by the trustees, was corrected by withholding that amount from the normally distributable income to the petitioner for the year 1921. The petitioner contends, in effect, that, because the Surrogate’s Court of New York approved the accounting of the trustees for 1921, in which the sum in question was transferred to the corpus of the estate instead of being paid to the petitioner, it did not constitute income distributable to her within the meaning of section 219 of the Revenue Act of 1921, and, therefore, was not subject to income tax under that section. Section 219 of the Revenue Act of 1921, in so far as applicable to the question here at issue, provides:
(a) That the tax imposed by sections 210 and 211 shall apply to the income of estates or of any kind of property held in trust, including—
*******
(4) Income which is to be distributed to the beneficiaries periodically, whether or not at regular intervals * * *.
*******
(d) In cases under paragraph (4) of subdivision (a), and in the case of any income of an estate during the period of administration or settlement permitted by subdivision (c) to be deducted from the net income upon which tax is to be paid by the fiduciary, the tax shall not be paid by the fiduciary, but there shall be included in computing the net income of each beneficiary that part of the income of the estate or trust for its taxable year which, pursuant to the instrument or order governing the distribution, is distributable to such beneficiary, whether distributed or not, * * *.
Since the Act provides that there shall be included in computing the beneficiary’s net income that part of the income of the trust, which, “ pursuant to the instrument or order governing the distribution, is distributable to such beneficiary,” and since the provision of the will under which the petitioner became beneficiary provided for the payment to her of all the profits and income arising from the *223properties held in trust, in quarter-yearly installments, there can be no question but that the entire income and profits of the estate, undiminished in any manner whatsoever, should have been included in computing the petitioner’s net income for 1921. Merely because the amount in question was not paid or distributed or, as the petitioner contends, was not “ distributable ” because of the overpayment in 1920 does not render it any the less income within the meaning of section 219, supra, and, therefore, taxable as such. The trustees simply erred in distributing to the petitioner a greater amount in 1920 than she was rightfully entitled to under the provisions of the trust indenture, which for our purpose must be regarded as creating an obligation on the part of the petitioner to reimburse the estate, out of future “ distributable ” income, the amount which had been erroneously credited or distributed to her. The error sought to be rectified occurred in 1920 and it is in that year, at least for income-tax purposes, that it must be corrected. We must, therefore, for the reasons stated, approve the findings of the respondent.
Judgment will he entered for the respondent. |
4,638,827 | 2020-12-02 18:00:37.476875+00 | null | https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/19-16478.pdf | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BESS BAIR; TRISHA LEE LOTUS; No. 19-16478
JEFFREY HEDIN; DAVID SPREEN;
CENTER FOR BIOLOGICAL D.C. No.
DIVERSITY; ENVIRONMENTAL 3:17-cv-06419-
PROTECTION INFORMATION CENTER; WHA
CALIFORNIANS FOR ALTERNATIVES
TO TOXICS; FRIENDS OF DEL NORTE,
Plaintiffs-Appellees, OPINION
v.
CALIFORNIA DEPARTMENT OF
TRANSPORTATION; TOKS
OMISHAKIN, in his capacity as
Director of the California
Department of Transportation,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding
Argued and Submitted October 13, 2020
San Francisco, California
Filed December 2, 2020
2 BAIR V. CAL. DEP’T OF TRANSP.
Before: Ferdinand F. Fernandez, Kim McLane Wardlaw,
and Daniel P. Collins, Circuit Judges.
Opinion by Judge Fernandez;
Concurrence by Judge Wardlaw
SUMMARY*
Environmental Law
Reversing the district court’s judgment in favor of
plaintiffs, vacating an injunction, and remanding, the panel
held that the California Department of Transportation
complied with the National Environmental Policy Act in
relying on an Environmental Assessment for a proposed
highway improvement project within Richardson Grove State
Park.
Granting partial summary judgment in favor of plaintiffs,
the district court concluded that Caltrans had failed
adequately to consider certain issues and therefore had not
taken the requisite “hard look” at the environmental impacts
of the Project, and the 2010 Environmental Assessment (EA),
as supplemented and revised, was inadequate. The district
court concluded that substantial questions had been raised as
to the effects of the Project, and it ordered Caltrans to prepare
an environmental impact statement (EIS). The district court
enjoined Caltrans from proceeding with the Project until the
EIS was finalized.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BAIR V. CAL. DEP’T OF TRANSP. 3
Reversing, the panel held that Caltrans based its 2017
finding of no significant impact (FONSI) upon the analysis
contained in the revised EA, which incorporated the analysis
of the 2010 EA and the 2013 Revised Supplemental EA.
Because Caltrans’ 2010 EA, as supplemented and revised,
constituted the “hard look” at the Project’s effects required by
NEPA, Caltrans’ issuance of the 2017 FONSI was
reasonable. The panel held that none of the purported
inadequacies identified by the district court rendered the
revised EA arbitrary or capricious.
Concurring, Judge Wardlaw wrote that she concurred in
the majority opinion, and Caltrans did not violate NEPA
because its reliance on the EA was not arbitrary and
capricious. Judge Wardlaw wrote separately to emphasize
that: (1) the administrative record was painful to review;
(2) if significant new information is discovered during the
proposed construction or substantial project changes are
made, Caltrans may need to reevaluate its analysis; and
(3) the Project seems likely to provide new data on the effects
of construction on old-growth redwoods, which could prove
important to future decisions surrounding these historic trees.
COUNSEL
Stacy Jayne Lau (argued), Michael A.G. Einhorn, and Angela
Wuerth; Lucille Y. Baca, Assistant Chief Counsel;
G. Michael Harrington, Deputy Chief Counsel; Erin E.
Holbrook, Chief Counsel; State of California Department of
Transportation – Legal Division, Oakland, California; for
Defendants-Appellants.
4 BAIR V. CAL. DEP’T OF TRANSP.
Stuart G. Gross (Argued) and Timothy S. Kline, Gross &
Klein LLP, San Francisco, California; Todd R. Gregorian and
Garner F. Kropp, Fenwick & West LLP, San Francisco,
California; for Plaintiffs-Appellees.
OPINION
FERNANDEZ, Circuit Judge:
This environmental appeal arises from a highway
improvement project proposed by the California Department
of Transportation (collectively with its director, Toks
Omishakin, Caltrans). Plaintiffs Bess Bair, Trisha Lee Lotus,
Jeffrey Hedin, David Spreen, the Center for Biological
Diversity, the Environmental Protection Information Center,
Californians for Alternatives to Toxics, and Friends of del
Norte (collectively, Bair1) challenged the project on a variety
of grounds, including the failure to comply with the National
Environmental Policy Act of 1969, Pub. L. No. 91–190,
83 Stat. 852
(1970) (NEPA). The district court determined that
Caltrans arbitrarily and capriciously relied upon the 2010
Environmental Assessment (2010 EA), as supplemented and
revised, because, it held, that document failed to sufficiently
consider certain “significant issues.” Bair v. Cal. State Dep’t
of Transp.,
385 F. Supp. 3d 878
, 886 (N.D. Cal. 2019). The
district court also enjoined Caltrans from continuing the
project until it finalized an appropriate environmental impact
statement (EIS). It then entered a final judgment against
Caltrans. We reverse and remand.
1
While the plaintiffs other than Bair have changed from time to time
during the more than ten years of litigation that has ensued, unless
otherwise noted, the plaintiffs will hereafter be referred to as Bair.
BAIR V. CAL. DEP’T OF TRANSP. 5
I. BACKGROUND
Richardson Grove State Park (the Grove) comprises
approximately 2,000 acres within the redwood forests of
southern Humboldt County, California, and is bisected by
United States Highway 101. Within the Grove, Highway 101
is a two-lane highway “on a nonstandard alignment” with
tight curves and narrow travel lanes and roadway shoulders.
A number of trees, including old-growth redwood trees,2 abut
the roadway as it meanders through the Grove. In light of
antiquated roadway design, there are restrictions on the types
of vehicles that may travel that portion of the highway.
Sixty-five foot long “California Legal” trucks are permitted,
but industry-standard Surface Transportation Assistance Act
of 19823 (STAA) trucks generally are not. STAA trucks are
longer than California Legal trucks and can carry larger cargo
volumes, although both classes of trucks are subject to the
same weight limitation. Because of their longer length,
STAA trucks navigating the highway’s tight curves
frequently “off-track” into the opposing traffic lane or onto
the roadway shoulder.
The STAA truck restriction at the Grove is the only
remaining impediment to STAA trucks traveling into
Humboldt County via Highway 101. Caltrans has long
sought to remove that roadblock, but abandoned previous
efforts because of the substantial projected expense, among
other things. In 2007, Caltrans learned that the existing
roadway could be strategically widened to render it accessible
2
Caltrans defined “old growth redwood[s]” as “trees over 30 inches
in diameter at breast height (4.5 feet above ground level).”
3
Pub. L. No. 97–424,
96 Stat. 2097
(1983).
6 BAIR V. CAL. DEP’T OF TRANSP.
to STAA trucks, and Caltrans developed the Richardson
Grove Operational Improvement Project (the Project) to do
just that. The Project involves slightly widening the roadway
and straightening some curves in certain locations along a
one-mile stretch of Highway 101, largely within the Grove.
Its purposes are to accommodate STAA truck travel, improve
the safety and operation of Highway 101, and improve the
movement of goods into Humboldt County. The speed limit
would remain unchanged at thirty five miles per hour.
Caltrans assumed responsibility for obtaining environmental
approval for the Project pursuant to NEPA. See
23 U.S.C. § 327
(a)(2)(A), (B)(i).
A. The Project as originally proposed in 2010
The original 2010 EA included extensive analysis of the
Project’s environmental effects and efforts to minimize those
effects (developed in consultation with the California
Department of Parks and Recreation (State Parks)). More
than 100 pages of the 2010 EA were devoted to analyzing
various environmental impacts, such as the effects on the
nearby South Fork Eel River, the Grove and its recreation
facilities, economic growth, traffic, water quality, noise, local
plant and animal species (particularly old-growth redwood
trees), and protected or threatened species.
Caltrans ultimately determined that the impacts to the
Grove would be minor, and would primarily consist of “tree
removal resulting from cuts and fills that are necessary to
accommodate the highway improvements,” as well as the
BAIR V. CAL. DEP’T OF TRANSP. 7
effect on trees whose structural root zones4 were within the
construction area. Although some trees would be removed,
none of those would be old-growth redwoods. And while
construction would occur in the structural root zones of fewer
than 80 old-growth redwoods, plans were made to mitigate its
effects. For example, Caltrans proposed to increase the
height of the roadbed where possible to avoid severing tree
roots, use a thinner roadbed material to allow greater
permeability, conduct some construction (excavation) by
hand, water trees during the summer, and remove some
invasive plants. In light of those measures, both the Caltrans
arborist (Darin Sullivan) and the arborist hired by Save the
Redwoods League (Dennis Yniguez) determined that the
Project as proposed in 2010 “would not significantly impact
the root health of the old growth trees adjacent to the
construction.” Caltrans issued the EA and Finding of No
Significant Impact (FONSI) for the Project in May 2010.
B. Past litigation
Bair filed suit regarding the Project in both 20105 and
2014,6 each time making similar claims. In the First
Litigation, the district court granted partial summary
judgment to the plaintiffs and ordered Caltrans to undertake
4
As defined in the 2010 EA, “the structural root zone is a circular
area with the tree trunk at the center with a radius equal to three times the
diameter of the tree trunk measured at 4.5 feet above ground level,” and
“is where most of the [tree’s] nutrient and water absorption occurs.”
5
Bair v. Cal. Dep’t of Transp., No. 3:10-cv-04360-WHA (N.D. Cal.
2010) (the First Litigation).
6
Bair v. Cal. Dep’t of Transp., No. 3:14-cv-03422-WHA (N.D. Cal.
2014) (the Second Litigation).
8 BAIR V. CAL. DEP’T OF TRANSP.
additional studies, such as preparing new maps of each old-
growth redwood tree, its root health zone, and the
environmental impacts to each tree. Bair, 385 F. Supp. 3d
at 883. Caltrans then revised its analysis accordingly. After
commissioning a tree report from arborist Yniguez, it issued
a 2013 Supplement to the 2010 EA. Caltrans then took public
comments, responded to them, and finally issued a NEPA Re-
validation for the Project in January 2014. It found that the
2010 EA and FONSI remained valid.
In the Second Litigation, Bair challenged the re-validated
Project on many of the same grounds as in the First
Litigation. See id. The Second Litigation was dismissed after
Caltrans withdrew the FONSI7 in light of an adverse ruling in
a parallel proceeding in the California Court of Appeal. See
Bair, 385 F. Supp. 3d at 883–84; Lotus v. Dep’t of Transp.,
167 Cal. Rptr. 3d 382
, 393 (Ct. App. 2014). In response to
the California court’s order, Caltrans slightly reduced the
scope of the Project, and Yniguez prepared another tree
report.
C. 2017 Project proposal and current litigation
Since the original issuance of the EA in 2010, Caltrans
has modified the Project to reduce its impact, primarily by
narrowing the proposed roadbed (roadway shoulders). The
Project now requires the removal of 38 trees, none of which
are old-growth redwoods, and construction will occur within
the structural root zones of 78 old-growth redwood trees,
72 of which are within the Grove. That construction activity
largely consists of (1) excavation to a maximum depth of two
7
Notice of Rescission of Finding of No Significant Impact,
79 Fed. Reg. 70,612
-01, 70,612 (Nov. 26, 2014).
BAIR V. CAL. DEP’T OF TRANSP. 9
feet; (2) covering some of the root zone with impervious
surface (roadbed); and (3) placing fill over tree roots. As
noted, Caltrans retained arborist Yniguez to evaluate the
effects of the Project on the redwoods and to produce two
reports summarizing his conclusions. In general, he
determined that the Project “would not have any substantial
detrimental effect on individual old-growth redwoods . . . or
the overall health of the stand of redwoods in Richardson
Grove.” His reports were based on scientific literature
regarding redwoods, his three decades of experience as an
arborist, multiple site visits to the Grove (including a
helicopter flight to evaluate tree crowns), and materials
provided by Caltrans such as the EA, detailed schematic
drawings of all trees with root zones within the Project area,
and individual tree details for each. Yniguez assessed each
tree individually to determine the likely effect on its health
from the root zone disturbances created by the Project, both
with and without mitigation measures, and assigned each tree
a rating corresponding to the anticipated effects on its health,
ranging from Level 0 to Level 6. He concluded that the
Project would not jeopardize the lives of any old-growth
redwood trees, and that the vast majority of such trees would
sustain no decline in foliage density or health as a result of
the Project. In the absence of mitigation measures, Yniguez
decided that approximately eighteen old-growth redwood
trees may manifest “a short-term visible reduction in foliage
density that is still well within the adaptive capabilities of the
tree” (Level 4 rating), while one such tree may undergo “a
reduction in root health sufficient to cause lasting visible
dieback of wood in the uppermost crown, although tree health
and survival [would] not [be] threatened” (Level 5 rating).
Including the Project’s mitigation measures substantially
reduced those effects: Yniguez determined that only three
old-growth redwood trees would remain in Level 4 and none
10 BAIR V. CAL. DEP’T OF TRANSP.
in Level 5 if the proposed mitigation measures were
implemented. Yniguez thus concluded that “[n]one of the
proposed highway alterations is of sufficient magnitude to
threaten the health or stability of any old-growth redwood”
because “disturbances would be confined to a small
percentage of the area occupied by roots and would be well
within the adaptive capabilities of the tree[s].” Moreover,
even without mitigation measures, Yniguez concluded that
“the limited root disturbance would be inconsequential to the
appearance, stability, and continued health of the old-growth
redwoods in Richardson Grove.”
Caltrans largely agreed with Yniguez’s analysis, but also
considered other evidence, such as scientific literature about
the resilience, health, and development of redwoods and their
root systems generally, the condition of the particular old-
growth redwood trees in the Project area, and the specific
activities and mitigation measures comprising the Project.
Caltrans thus concluded that “[i]n no case would root
disturbance have a significant detrimental effect on the health
or stability of old-growth redwoods.” In May 2017, Caltrans
issued revisions to the EA and a new FONSI.
Bair filed this litigation in 2017,8 again raising claims
similar to those that had been made in the First Litigation and
the Second Litigation, specifically: seven claims alleging
various violations of NEPA, as well as claims for a violation
of section 4(f) of the Department of Transportation Act,9 a
8
Bair v. Cal. Dep’t of Transp., No. 3:17-cv-06419-WHA (N.D. Cal.
2017).
9
23 U.S.C. § 138
(a); see also
23 C.F.R. § 774.1
.
BAIR V. CAL. DEP’T OF TRANSP. 11
violation of section 7 of the Wild and Scenic Rivers Act,10 a
violation of the Administrative Procedure Act (APA),11 a
declaration that Caltrans is responsible for Bair’s attorney’s
fees and costs,12 and injunctive relief.13 The district court
granted Bair partial summary judgment as to some of the
NEPA claims. Bair, 385 F. Supp. 3d at 898.14 The district
court identified certain issues that, in its view, Caltrans had
not adequately considered: whether (1) redwoods would
suffocate when more than half of their root zones were
covered by pavement;15 (2) construction in a redwood’s
structural root zone would cause root disease;16 (3) traffic
noise would increase because of the larger size of the STAA
trucks or because of additional numbers of trucks;17 and
(4) redwoods would suffer more frequent and severe damage
as a result of strikes by STAA trucks.18 Because of those
deficiencies, the district court determined that Caltrans had
not taken the requisite “hard look” at the environmental
impacts of the Project, and that the EA was inadequate. Id.
10
16 U.S.C. § 1278
(a).
11
5 U.S.C. § 706
(2)(A), (D).
12
See
23 U.S.C. § 327
(a)(2)(G);
Cal. Civ. Proc. Code § 1021.5
.
13
Fed. R. Civ. P. 65(a).
14
The district court did not address Bair’s other claims. See
id.
15
Id. at 886, 888
.
16
Id. at 891
.
17
Id.
at 892–93, 895.
18
Id. at 895
.
12 BAIR V. CAL. DEP’T OF TRANSP.
at 890–91, 895, 898. In light of those supposed shortcomings
in the EA, the district court concluded that substantial
questions had been raised as to the effects of the Project, and
it ordered Caltrans to prepare an EIS. The district court also
enjoined Caltrans from proceeding with the Project until the
EIS was finalized. Caltrans timely appealed. See Fed. R.
App. P. 4(a)(1)(A).
II. JURISDICTION
The district court had jurisdiction pursuant to
28 U.S.C. § 1331
. We have jurisdiction.
28 U.S.C. § 1291
; see
HonoluluTraffic.com v. Fed. Transit Admin.,
742 F.3d 1222
,
1229 (9th Cir. 2014); Alsea Valley All. v. Dep’t of Com.,
358 F.3d 1181
, 1184 (9th Cir. 2004).
III. STANDARDS OF REVIEW
“We review de novo a district court’s grant of summary
judgment.” Am. Wild Horse Campaign v. Bernhardt,
963 F.3d 1001
, 1007 (9th Cir. 2020). “[A]gency decisions
that allegedly violate NEPA” are reviewed “under the
Administrative Procedure Act, and we set aside those
decisions only if they are ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Id.; see
also
5 U.S.C. § 706
(2)(A). “Whether a plaintiff has
exhausted required administrative remedies is a question of
law reviewed de novo.” Great Basin Mine Watch v. Hankins,
456 F.3d 955
, 961 (9th Cir. 2006).
IV. DISCUSSION
NEPA generally “requires a federal agency . . . to prepare
‘a detailed statement on . . . the environmental impact’ of
BAIR V. CAL. DEP’T OF TRANSP. 13
‘major Federal actions significantly affecting the quality of
the human environment,’”19 a document known as an EIS.20
However, the regulations alternatively “allow an agency to
prepare a more limited document, an Environmental
Assessment (EA), if the agency’s proposed action . . . would
[not] clearly require the production of an EIS.” Dep’t of
Transp. v. Pub. Citizen,
541 U.S. 752
, 757,
124 S. Ct. 2204
,
2209–10,
159 L. Ed. 2d 60
(2004); see also
40 C.F.R. § 1501.4
(b)–(c). An EA is “a ‘concise public document’ that
‘[b]riefly provide[s] sufficient evidence and analysis for
determining whether to prepare an [EIS].’” Dep’t of Transp.,
541 U.S. at 757
,
124 S. Ct. at 2210
; see also Ctr. for
Biological Diversity, 538 F.3d at 1185;
40 C.F.R. § 1508.9
(a)–(b).
If the “agency determines that an EIS is not required . . . ,
it . . . issue[s] a ‘finding of no significant impact’ (FONSI),
which briefly presents the reasons why the proposed agency
action will not have a significant impact on the human
environment.” Dep’t of Transp.,
541 U.S. at
757–58,
124 S. Ct. at 2210
; see also
40 C.F.R. §§ 1501.4
(e), 1508.13. That
decision “can be set aside only upon a showing that it was
19
Ctr. for Biological Diversity v. Nat’l Highway Traffic Safety
Admin.,
538 F.3d 1172
, 1185 (9th Cir. 2008); see also
42 U.S.C. § 4332
(C).
20
See
40 C.F.R. § 1501.4
(a), (c). The Council on Environmental
Quality has adopted new regulations that became effective on September
14, 2020. Update to the Regulations Implementing the Procedural
Provisions of the National Environmental Policy Act,
85 Fed. Reg. 43,304
, 43,304 (July 16, 2020); see also
40 C.F.R. § 1506.13
(2020).
Because Caltrans applied the previous regulations to the Project, so do we.
Unless otherwise indicated, the regulations cited herein are the versions
in effect when the district court rendered its decision.
14 BAIR V. CAL. DEP’T OF TRANSP.
‘arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.’” Dep’t of Transp.,
541 U.S. at 763
,
124 S. Ct. at 2213
; see also
5 U.S.C. § 706
(2)(A); Ocean
Advocs. v. U.S. Army Corps of Eng’rs,
402 F.3d 846
, 858 (9th
Cir. 2005). Determining whether the agency’s decision not
to prepare an EIS was arbitrary and capricious “requires us to
determine whether the agency has taken a hard look at the
consequences of its actions, based [its decision] on a
consideration of the relevant factors, and provided a
convincing statement of reasons to explain why a project’s
impacts are insignificant.” Native Ecosystems Council v. U.S.
Forest Serv. (Native Ecosystems I),
428 F.3d 1233
, 1239 (9th
Cir. 2005) (internal quotation marks omitted). Although our
review “is ‘searching and careful,’” it is nevertheless
narrowly circumscribed, “and we cannot substitute our own
judgment for that of the [agency].” Ocean Advocs.,
402 F.3d at 858
. Instead, “[w]e ask ‘whether the [agency’s] decision
was based on a consideration of the relevant factors and
whether there has been a clear error of judgment.’”
Id. at 859
; see also In Def. of Animals v. U.S. Dep’t of the Interior,
751 F.3d 1054
, 1072 (9th Cir. 2014). But we must keep in
mind that we are not “a panel of scientists that instructs the
[agency] how to validate its hypotheses . . . , chooses among
scientific studies . . . , [or] orders the agency to explain every
possible scientific uncertainty.” Lands Council v. McNair,
537 F.3d 981
, 988 (9th Cir. 2008) (en banc), overruled in part
on other grounds by Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7
, 21–22,
129 S. Ct. 365
, 375,
172 L. Ed. 2d 249
(2008).
Caltrans based its 2017 FONSI upon the analysis
contained in the revised EA, which incorporated the analysis
of the 2010 EA and the 2013 Revised Supplemental EA.
Because Caltrans’ 2010 EA, as supplemented and revised,
BAIR V. CAL. DEP’T OF TRANSP. 15
constituted the “hard look” at the Project’s effects required by
NEPA, Caltrans’ issuance of the 2017 FONSI was
reasonable. The district court erred in granting partial
summary judgment to Bair. As we explain in the ensuing
paragraphs, none of the purported inadequacies it identified
rendered the revised EA arbitrary or capricious.
First, as to redwood tree suffocation, Caltrans sufficiently
considered the effect of paving over portions of tree root
zones. The Project will use a special material to allow
“‘greater porosity’” and to “‘promote air circulation’” under
the asphalt,21 and Caltrans considered the aggregate amount
of new roadbed material that would be placed over the
structural root zones. Yniguez specifically relied in part upon
Caltrans’ selection of permeable material, the minor and
limited areas of new asphalt, and Caltrans’ decision to narrow
the proposed roadway shoulders where possible in reaching
his conclusion that the Project would not create extreme
stress in the redwoods or overwhelm their natural resilience.22
And, as more particularly described in Part I.C of this
Opinion, Yniguez and Caltrans thoroughly assessed the
amount of paving that would be placed over the root zone of
each tree. Caltrans considered the possibility that paving
could harm the trees, but simply (and reasonably) concluded
that there was sufficient evidence to the contrary. See In Def.
21
Bair, 385 F. Supp. 3d at 888.
22
Caltrans reasonably relied upon Yniguez’s reports, and Bair does
not argue otherwise. See Native Ecosystems Council v. Weldon (Native
Ecosystems II),
697 F.3d 1043
, 1051–52 (9th Cir. 2012). Caltrans’
reliance on evidence specifically pertaining to redwoods (including
Yniguez’s reports) was eminently reasonable, especially because the
record reflects that redwood trees and their root systems are particularly
(uniquely) resilient.
16 BAIR V. CAL. DEP’T OF TRANSP.
of Animals, 751 F.3d at 1072; Lands Council,
537 F.3d at 1003
. That was not arbitrary or capricious. See In Def. of
Animals, 751 F.3d at 1072–73.23 The district court erred in
concluding that the EA failed to adequately consider the
effects of paving over portions of the root zones of certain
trees.
Second, as to construction within root zones, Caltrans
appropriately considered the extent and effect of the
construction activity that would occur in the structural root
zones of redwood trees, including construction guidelines in
a State Parks handbook. The record plainly belies Bair’s
contention that Caltrans failed to consider the effects of
construction. On the contrary, as described in Part I of this
Opinion, the record is replete with Caltrans’ comprehensive
analyses of the extent and effects of construction activity in
the root zones of individual trees. See Cold Mountain v.
Garber,
375 F.3d 884
, 893–94 (9th Cir. 2004).24 As to the
23
Moreover, there is no evidence supporting the district court’s
assumption that 50% paving over root zones is some sort of “threshold”
demarcating a “‘danger zone’” or “red zone” for redwood trees. Bair,
385 F. Supp. 3d at 888–89. Rather, that is an unwarranted inference
drawn from a misreading of evidence in the record. Indeed, no comments
or evidence in the administrative record raised the 50% threshold issue.
That suggests that the issue was not even administratively exhausted. See
Barnes v. U.S. Dep’t of Transp.,
655 F.3d 1124
, 1132, 1135–36 (9th Cir.
2011).
24
The district court erred in criticizing Caltrans for failing to consider
whether root disease would arise from root injuries caused by
construction. See Bair, 385 F. Supp. 3d at 891. Caltrans reasonably relied
upon its expert’s opinion that redwoods have “no important . . . disease
enemies”—evidence tailored to redwoods specifically, rather than trees in
general. See In Def. of Animals, 751 F.3d at 1072; City of Carmel-By-The-
Sea v. U.S. Dep’t of Transp.,
123 F.3d 1142
, 1151 (9th Cir. 1997).
BAIR V. CAL. DEP’T OF TRANSP. 17
sentence in State Parks’ handbook that recommended that no
construction should take place in the structural root zone “of
a protected tree,” it is not clear that it applied to the affected
redwoods or influenced State Parks’ opinion of the Project, or
that Caltrans was obligated to defer to or adopt that opinion.
See WildEarth Guardians v. Provencio,
923 F.3d 655
, 672
(9th Cir. 2019); see also Native Ecosystems I,
428 F.3d at 1242
. NEPA anticipates that the administrative record may
contain contradictory and conflicting opinions, expert and
otherwise,25 and does not require an agency to follow all
recommendations made by commentators, other agencies, or
experts.26 Thus, to the extent that the recommendation in
State Parks’ handbook is relevant here, Caltrans could (and
did) reasonably refuse to follow it, especially when Caltrans
relied upon evidence specifically pertaining to the effects of
construction on redwoods in general and the redwoods in the
Project area, in particular. In fine, the district court erred
when it decided that Caltrans failed to sufficiently consider
the State Parks handbook and the impact of construction in
the structural root zones of old-growth redwoods.
Third, as to traffic volume and noise, the district court
erred when it decided that Caltrans failed to adequately
consider how the visitor experience to the Grove would be
affected by the presence of STAA trucks, particularly with
regard to whether they would be more numerous or generate
more noise. Bair, 385 F. Supp. 3d at 891–92, 895. Caltrans’
EA concluded that truck traffic would not increase as a result
of the Project, and it properly relied upon record evidence to
25
City of Carmel-By-The-Sea,
123 F.3d at 1151
; see also In Def. of
Animals, 751 F.3d at 1072.
26
See WildEarth Guardians, 923 F.3d at 672.
18 BAIR V. CAL. DEP’T OF TRANSP.
do so, including: a survey of regional business owners, traffic
studies in nearby areas suggesting little latent demand for the
route, the fact that highway capacity would be unchanged,
and Caltrans’ opinion that STAA trucks currently using the
straighter alignment and faster travel time of Interstate 5 to
reach major coastal cities were unlikely to detour through the
Grove. See In Def. of Animals, 751 F.3d at 1072. Caltrans
reasonably concluded from that evidence that traffic would
not increase as a result of the Project. Thus, Caltrans’
conclusion that traffic would not increase is entitled to
deference. See WildEarth Guardians, 923 F.3d at 672; Native
Ecosystems II, 697 F.3d at 1052–53; cf. Ocean Advocs.,
402 F.3d at
865–66 (agency failed to consider possible traffic
increase). Moreover, in light of its conclusion that truck
traffic would not increase, Caltrans also reasonably concluded
that traffic noise would not appreciably increase. Although
the district court stated that it believed STAA trucks would be
noisier than California Legal trucks because their tractor units
“are bigger and heavier,”27 it cited no evidence for its
assumptions about the size and weight of STAA tractor units,
or its belief about their noise in comparison to California
Legal trucks. Nor have we been pointed to any evidence of
that in the record. A district court has no more license to act
as “a panel of scientists” than we have. Lands Council,
537 F.3d at 988
. Caltrans adequately considered the Project’s
effects on both traffic and traffic noise in the Grove, and
reasonably concluded that the impacts would not be
significant.
Fourth, as to collisions with trees, the district court erred
by determining that Caltrans should have analyzed whether
the Project could cause trees to: suffer more frequent
27
Bair, 385 F. Supp. 3d at 894–95.
BAIR V. CAL. DEP’T OF TRANSP. 19
collisions with trucks because STAA trucks are longer and
more difficult to maneuver; and sustain more damage from
collisions because STAA trucks are heavier and their engine
compartments more protruding than California Legal trucks.
Bair, 385 F. Supp. 3d at 895. Caltrans’ analysis was not
arbitrary and capricious. See Lands Council,
537 F.3d at 993
.
As to collision frequency, the undisputed purpose of the
Project is to widen the road in order to provide room for off-
tracking STAA trucks, and Caltrans reasonably concluded
that doing so would decrease the incidence of vehicles
colliding with trees. Bair’s assumption that the collision risk
will increase because the pavement will be closer to some
trees ignores that the pavement is moving farther from other
trees.28 Caltrans’ conclusions regarding the frequency of
collisions were reasonable and entitled to deference,
especially because they pertain to an “area[] of agency
expertise.” Nat’l Parks & Conservation Ass’n v. U.S. Dep’t
of Transp.,
222 F.3d 677
, 682 (9th Cir. 2000); see also Lands
Council,
537 F.3d at 993
.
As to damage severity, we have not located any
comments or documents in the administrative record which
indicate that STAA trucks would cause more damage when
they strike trees. Thus, it appears that issue was not
administratively exhausted. See Barnes,
655 F.3d at 1132
,
1135–36. And even if the issue had been exhausted, the
district court’s speculation that trees would suffer more
severe damage from collisions because of the weight or shape
of STAA trucks is not supported by any evidence in the
28
It also ignores record evidence suggesting that the number of trucks
traveling through the Grove may actually decrease because some of the
California Legal trucks that would otherwise drive through the Grove may
be replaced by fewer STAA trucks.
20 BAIR V. CAL. DEP’T OF TRANSP.
record. It was reasonable for Caltrans’ EA not to anticipate
that unfounded speculation. See Lands Council,
537 F.3d at 1002
. We reject Bair’s argument that because Caltrans was
responsible for drafting the EA, it was also required to amass
evidence demonstrating the comparative damage caused to
trees by collisions with STAA trucks and California Legal
trucks. See
40 C.F.R. § 1508.9
(a). While it is arbitrary and
capricious for an agency to “‘entirely fail[] to consider an
important aspect of the problem,’” that did not occur here.
Lands Council,
537 F.3d at 993
. As described above,
Caltrans considered the effects of the Project with regard to
traffic volume, noise, ease of navigation, and tree collisions.
An agency is not required “to address in detail . . . every
single comment . . . to prove that [it] ‘considered’ the relevant
factors,”29 much less to anticipate conclusory supposition
about speculative and tangential effects that are not supported
by evidence in the record.30
For those reasons, we are satisfied that Caltrans took a
hard look at the consequences of the Project, and adequately
considered the relevant factors. See Native Ecosystems I,
428 F.3d at 1239
. That Bair or the district court may disagree
with Caltrans’ conclusions “does not constitute a NEPA
violation.” Native Ecosystems II, 697 F.3d at 1053; see also
WildEarth Guardians, 923 F.3d at 672. Thus, the district
court erred in finding Caltrans’ EA arbitrary and capricious
and in setting aside the 2017 FONSI.
29
In Def. of Animals, 751 F.3d at 1072.
30
See WildEarth Guardians, 923 F.3d at 672; Native Ecosystems II,
697 F.3d at 1053, 1055; see also Am. Wild Horse Campaign, 963 F.3d
at 1008–10.
BAIR V. CAL. DEP’T OF TRANSP. 21
In light of our conclusion, we reverse the district court’s
judgment requiring Caltrans to produce an EIS and enjoining
it from continuing the Project until it has done so. An agency
must prepare an EIS “[i]f there is a substantial question
whether an action ‘may have a significant effect’ on the
environment.” Ctr. for Biological Diversity,
538 F.3d at 1185
; see also
42 U.S.C. § 4332
(C);
40 C.F.R. §§ 1502.1
,
1508.18, 1508.27. The district court’s rationale for requiring
an EIS was predicated on its erroneous conclusions about the
Project’s effects on redwood tree health and possible
increases in truck traffic and noise. Because we have
determined that the EA’s analysis was adequate in those
respects, the district court necessarily erred in setting aside
the 2017 FONSI and ordering Caltrans to prepare an EIS if it
desired to proceed. See Dep’t of Transp.,
541 U.S. at
762–64,
124 S. Ct. at
2212–13.31
V. CONCLUSION
The parties have engaged in contentious litigation over
the (relatively limited) Project for more than ten years.
However, Caltrans’ environmental analyses regarding the
redwoods and traffic satisfied NEPA’s requirements.
Therefore, we reverse the district court’s judgment, and we
vacate the injunction.
While we have now resolved those aspects of the parties’
dispute, Bair’s other claims regarding defects in Caltrans’
31
Caltrans invites us to exercise our discretion to resolve Bair’s other
claims, which the district court did not reach when it entered final
judgment against Caltrans. See Bair, 385 F. Supp. 3d at 898. We decline
the invitation. See Davis v. Nordstrom, Inc.,
755 F.3d 1089
, 1094–95 (9th
Cir. 2014).
22 BAIR V. CAL. DEP’T OF TRANSP.
consideration of other issues remain unresolved because the
district court’s order that Caltrans must prepare an EIS made
it unnecessary to do so. We expect that the district court will
now expeditiously consider and dispose of those remaining
claims on remand.
REVERSED and REMANDED for further
proceedings not inconsistent with this Opinion.
WARDLAW, Circuit Judge, concurring
“Although the environmental assessment did not always
make [Caltrans’s] reasoning explicit” and is “a decision of
less than ideal clarity,” “the agency’s path may reasonably be
discerned.” Am. Wild Horse Campaign v. Bernhardt,
963 F.3d 1001
, 1009 (9th Cir. 2020). Therefore, in light of
the administrative record in this case, I concur in the majority
opinion. Caltrans did not violate NEPA because its reliance
on the EA was not arbitrary and capricious. I write separately
to emphasize three points.
First, reviewing the “nightmarish ‘administrative record’
in this case was a painful exercise. Bair v. Cal. State Dep’t
of Transp., No. C 17-06419 WHA,
2019 WL 2644074
, at *5
(N.D. Cal. June 27, 2019). When resolving the remaining
claims on remand, the district court’s suggestion that Caltrans
provide a “fresh administrative record . . . with no
incorporations by reference” seems sensible. Id. at *5.
Second, and as Caltrans’s counsel acknowledged at oral
argument, if “significant new information is discovered”
during the proposed construction or if “substantial project
BAIR V. CAL. DEP’T OF TRANSP. 23
changes are made,” Recording of October 13, 2020 Oral
Argument at 17:10–17:42,1 Caltrans may well need to
reevaluate its analysis and potentially prepare an additional
revised EA or even an EIS. See
23 C.F.R. §§ 771.129
,
771.130; see also Idaho Sporting Congress Inc. v. Alexander,
222 F.3d 562
, 566 n.2 (9th Cir. 2000) (“NEPA imposes on
federal agencies a continuing duty to supplement existing
EAs and EISs in response to significant new circumstances or
information relevant to environmental concerns and bearing
on the proposed action or its impacts.” (internal quotation
marks and citation omitted)); Price Road Neighborhood
Ass’n, Inc. v. U.S. Dep’t of Transp.,
113 F.3d 1505
, 1510 (9th
Cir. 1997) (examining the FHWA NEPA framework and the
continuing duty to supplement).
Third and relatedly, the road or highway construction that
Caltrans has proposed here seems likely to provide new data
on the effects of construction on old-growth redwoods.
Given that much of the scientific evidence in the record is
non-quantitative and dated, I would expect that such data
would prove important to future decisions surrounding these
historic trees, and—if that data becomes available during the
project—to any decision concerning the preparation of a
supplemental EA or EIS.
So therefore, I respectfully concur, with slight
reservations in these tumultuous times.
1
https://tinyurl.com/y39s2g6o (last visited Nov. 24, 2020). |
4,491,900 | 2020-01-17 22:03:07.439978+00 | Murdoch | null | *1388OPINION.
Murdoch: :
There is no issue relating to the years 1922, 1923, or 1926, and the deficiencies determined for those years are approved.The parties agree as to the amount of the loss and as to the year in which it was sustained. Counsel for the petitioner admitted at the hearing that $13,650, the cost of the original 273 shares of stock pur*1389chased by the petitioner prior to 1922, was a capital loss. In his brief he argues that, since capital loss means a loss resulting from “ the sale or exchange ” of the assets, there was no such loss in the present case because the stock was not sold or exchanged, but was determined to be worthless in 1925. He cites a number of Board cases holding that the cost of worthless stock is an allowable deduction, and he cites also I.T. 2149, C.B. IV-1, p. 36, for holding that it is not a capital loss. This argument, if sound — a question which we do not determine, would not benefit the petitioner. In computing the loss, allowed as a capital net loss in 1925, the Commissioner has included the original cost of the 273 shares of stock owned by the petitioner prior to 1920. He has not asked the Board to disallow the cost' of this stock as a loss in 1925 or to increase the deficiency in any way. But if the cost of this stock is to be allowed as a loss when the stock actually became worthless, it is not a loss in 1925, for the stock became worthless prior to that year.
At the time the petitioner paid the $25,000, he already owned more than half of the outstanding stock of this bank. It is stipulated that the bank examiner directed that a stock assessment of 100 per cent be made upon the stockholders, and in order to meet this demand the petitioner and Buford each paid $25,000. This $25,000 seems to us to represent additional cost of the stock already owned so far as this petitioner is concerned and as to that the petitioner is not entitled to any relief in this proceeding.
Under the circumstances, we think the only real issue in the case is whether $56,405, the remainder of the loss allowed by the Commissioner as a capital net loss, was or was not a capital net loss within the meaning of section 208 of the Kevenue Act of 1926 which provides, “ The term £ capital loss ’ means deductible loss resulting from the sale or exchange of capital assets ” and “the term £ capital assets’ means property held by the taxpayer for more than two years.” In 1922 the petitioner advanced $110,400 to the bank so that the bank might pay the amounts owed to city correspondents and liquidate. One good and sufficient reason for the petitioner making this payment was that he had guaranteed, both orally and in writing, the credit advanced by the city banks to the People’s Bank. His reasons for making the guarantee are fully set forth in our findings of fact. This was a transaction entered into for profit. The loss which resulted, in the amount of $56,405, was an ordinary loss under section 214 as opposed to a capital loss under section 208.
Judgment will ~be entered u/nder Rude 50. |
4,638,830 | 2020-12-02 18:00:40.095266+00 | null | http://www.ca10.uscourts.gov/opinions/20/20-6150.pdf | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6150
(D.C. No. 5:06-CR-00096-HE-1)
ALEXANDER CHRISTIAN MILES, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, LUCERO and McHUGH, Circuit Judges.
_________________________________
This matter is before the court on the government’s motion to enforce the
appeal waiver in Alexander Christian Miles’s plea agreement. We grant the
government’s motion and dismiss the appeal.
BACKGROUND
In July 2001, Miles, then 43 years old, applied for a K-1 visa to bring his
Cambodian fiancée to the United States, misrepresenting her age as 18 years old
when he knew she was only 14. The visa was granted, and they moved to New York,
where they were married in December 2001. Miles then misrepresented his wife’s
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
age in an application for adjustment of status. In July 2002, they moved from New
York to Oklahoma. Miles was indicted shortly thereafter under
18 U.S.C. § 2423
(a)
for transporting a minor across state lines with intent to engage in sexual activity
contrary to state law. He ultimately pleaded guilty to falsely stating his then-
fiancée’s age in the K-1 visa application, in violation of
18 U.S.C. § 1001
(a)(3). As
part of a plea agreement, the government agreed to dismiss the charge under
§ 2423(a). Miles, in turn, waived his right to “[a]ppeal or collaterally challenge his
guilty plea . . . and any other aspect of his conviction” as well as “his sentence as
imposed by the Court and the manner in which the sentence is determined, provided
the sentence is within or below the advisory guideline range determined by the Court
to apply to this case.” Mot. to Enforce attach. 1 at 5. The court imposed a sentence
of 5 years’ imprisonment and 3 years’ supervised release. Miles appealed the
imposition of sex-offender conditions, and we affirmed. United States v. Miles,
411 F. App’x 126, 127 (10th Cir. 2010).
Miles has since spent the past decade seeking post-conviction relief. He first
filed a
28 U.S.C. § 2255
motion, which the district court denied based upon the
collateral-challenge waiver in Miles’s plea agreement. We denied a certificate of
appealability (COA). United States v. Miles, 546 F. App’x 730, 731 (10th Cir. 2012).
After he was released from custody in 2013, Miles petitioned for a writ of coram
nobis. The district court again enforced the collateral-challenge waiver and denied
the petition. We affirmed. United States v. Miles, 553 F. App’x 846, 847 (10th Cir.
2014). Miles then filed a second petition for a writ of coram nobis, which the district
2
court denied based on the collateral-challenge waiver, the abuse-of-the-writ doctrine,
and a lack of merit. We affirmed based on the abuse-of-the-writ doctrine and did not
address the other grounds. United States v. Miles,
923 F.3d 798
, 800-01 (10th Cir.
2019). Finally, in 2020, Miles filed a Motion for Clerical Error Correction and
Vacation of Conviction, contending, as he did in his prior filings, that his
misrepresentations about his wife’s age were immaterial. The district court again
denied the motion based on the collateral-challenge waiver, the abuse-of-the-writ
doctrine, and a lack of merit. Miles timely appealed.
DISCUSSION
The government has moved to enforce the appeal waiver in Miles’s plea
agreement under United States v. Hahn,
359 F.3d 1315
(10th Cir. 2004) (en banc)
(per curiam). Under Hahn, we consider “(1) whether the disputed appeal falls within
the scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.”
Id. at 1325
; see also United States v. Viera,
674 F.3d 1214
, 1217 (10th Cir. 2012) (applying Hahn analysis to denial of § 2255
claim based on collateral-challenge waiver).
In his pro se response1 to the government’s motion, Miles contends only that
1
Because Miles is pro se, we liberally construe his filings but will not act as
his advocate. See Yang v. Archuleta,
525 F.3d 925
, 927 n.1 (10th Cir. 2008).
3
his appeal does not fall within the scope of his appeal waiver.2 He argues that
because the recommended sentence under the Sentencing Guidelines was 0 to 6
months and because the district court imposed a sentence of 60 months, he is
“entitled to challenge both his conviction and his sentence on account of the District
Court’s upward variance.” Resp. at 6. But the exception to his waiver based on an
upward variance from the Guidelines applies only to challenges to his sentence, not
his conviction. See Mot. to Enforce attach. 1 at 5 (waiving the right to “[a]ppeal[]
[or] collaterally challenge . . . his sentence as imposed by the Court and the manner
in which the sentence is determined, provided the sentence is within or below the
advisory guideline range determined by the Court to apply to this case” (emphasis
added)); see also id. at 6 (“It is provided that defendant specifically does not waive
the right to appeal a sentence above the advisory guideline sentencing range
determined by the Court to apply to this case.” (emphasis added)). An upward
variance has no bearing on his waiver of his right to “[a]ppeal or collaterally
challenge his guilty plea . . . and any other aspect of his conviction.” Id. at 5.
Here, Miles plainly is challenging his conviction, not his sentence. See Resp.
at 3 (describing his current challenge as being based on a 2019 U.S. Senate Report,
which he alleges “provides newly available evidence that no reasonable fact finder
could have found him guilty of a material misrepresentation in violation of 18 U.S.C.
2
We therefore do not address the remaining two factors under Hahn—whether
the waiver was voluntary and whether enforcement would result in a miscarriage of
justice. See United States v. Porter,
405 F.3d 1136
, 1143 (10th Cir. 2005) (noting
this court does not need to address a Hahn factor that the defendant does not contest).
4
§1001(a)(3)” (emphasis added)); id. at 9 (arguing the waiver does not bar him “from
insisting that his plea agreement be rescinded and his conviction reversed” (emphasis
added)). In fact, Miles admits he “has fully completed his sentence.” Id. at 8.
Accordingly, the exception to his appeal waiver does not apply, and this appeal “falls
within the scope of the waiver.” Hahn,
359 F.3d at 1325
. We therefore enforce
Miles’s appeal waiver and grant the government’s motion to dismiss.
FILING RESTRICTIONS
The government also requests that we impose filing restrictions on Miles due
to his pattern of abusive litigation. Miles opposes restrictions, first on the ground
that he “does not expect to burden the federal judiciary with future pleading.”3 Resp.
at 19. But if true, then he can hardly complain about restrictions on future filings.
Miles also argues his claim of newly discovered evidence was “neither
disingenuous[] nor frivolous.”
Id.
But he fails to acknowledge that his claim was
barred by his collateral-challenge waiver and that his present appeal was barred by
the appeal waiver. He also fails to address his vexatious litigation history spanning
the past ten years, which the government aptly described in its motion, see Mot. to
Enforce at 12 (“Despite agreeing that he would not challenge his conviction
collaterally, including the current time, Dr. Miles has challenged his conviction
3
In his most recent appeal, however, this court found that Miles made
“knowing and material misrepresentations in [his] filings,” including his coram nobis
petition and supporting affidavit. Miles, 923 F.3d at 805 n.2. We thus directed the
Clerk to send copies of the opinion the State Bar of California, where Miles had been
licensed to practice law, and the medical boards of four states where he was licensed
to practice medicine so they could determine whether to take any disciplinary action.
5
collaterally on four occasions, claiming in each attack that the lies he told the INS
were immaterial. This Court rejected his argument twice on the merits and held on a
third occasion[] that his argument constituted an abuse of the writ.” (citations
omitted)).
“Federal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions under appropriate circumstances.”
Ysais v. Richardson,
603 F.3d 1175
, 1180 (10th Cir. 2010). Filing restrictions may
be imposed when: “(1) the litigant’s lengthy and abusive history is set forth; (2) the
court provides guidelines as to what the litigant must do to obtain permission to file
an action; and (3) the litigant received notice and an opportunity to oppose the
court’s order before it is instituted.”
Id.
(internal quotation marks omitted).
This court proposes to enjoin Miles from filing any further pro se filings with
this court that raise the same or substantially similar issues arising out of the same
criminal conviction or the same or similar set of facts and circumstances as asserted
in the present appeal or in his prior appeals, including Nos. 12-6011, 13-6110, and
18-6119, unless he obtains permission to do so. To obtain the court’s permission,
Miles must take the following steps:
1. File a petition with the clerk of this court requesting leave to file a pro se
proceeding;
2. Include in the petition the following information:
a. A list, by case name, number, and citation where applicable, of all
proceedings currently pending or previously filed in this court by
Miles, with a statement indicating the current status or disposition of
each proceeding; and
6
b. A list apprising this court of all outstanding injunctions, contempt
orders, or other judicial directions limiting his access to state or
federal court, including orders and injunctions requiring him to be
represented by an attorney; said list to include the name, number,
and citation, if applicable, of all such orders and injunctions;
3. File with the clerk a notarized affidavit, in proper legal form, which recites
the issues he seeks to present, including a particularized description of the
order or ruling being challenged and a short statement of the legal basis
asserted for the challenge. The affidavit must also certify, to the best of his
knowledge, that the legal arguments advanced are not frivolous or made in
bad faith; that they are warranted by existing law or a good faith argument
for the extension, modification, or reversal of existing law; that the appeal
or other proceeding is not interposed for any improper purpose; and that he
will comply with all federal appellate rules and local rules of this court.
These documents shall be submitted to the clerk of this court, who shall
forward them to the court for review to determine whether to permit the pro se appeal
or other proceeding. Without the court’s approval, the matter will not proceed. If the
court approves the submission, an order will be entered indicating that the matter
shall proceed in accordance with the Federal Rules of Appellate Procedure and the
Tenth Circuit Rules. Only then will the appeal or other proceeding formally be filed
in this court.
CONCLUSION
We grant the government’s motion to enforce Miles’s appeal waiver and
dismiss this appeal. Moreover, the filing restrictions set forth herein shall be
7
imposed on Miles twenty days from the date of this order and judgment unless this
court orders otherwise upon review of any objections.
Entered for the Court
Per Curiam
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United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-3193
(D.C. No. 2:16-CR-20032-JAR-2)
KARL CARTER, (D. Kan.)
Defendant.
------------------------------
TYWAN A. POOLE,
Movant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Tywan A. Poole, proceeding pro se, appeals from the district court’s denial of
his motion for discovery and return of seized property under Rule 41(g) of the
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
Federal Rules of Criminal Procedure. Exercising jurisdiction under
28 U.S.C. § 1291
, we affirm.
I. Background
A. Proceedings in the Western District of Missouri
Mr. Poole entered a guilty plea to a two-count information in the Western
District of Missouri charging him with possession with intent to distribute 10 grams
or more of PCP and being a drug user in possession of a firearm. He was sentenced
to serve 96 months in prison. Between 2015 and 2019, Mr. Poole made a number of
attempts to collaterally attack his conviction and/or sentence in the Western District
of Missouri and the Eighth Circuit, but all of his attempts were unsuccessful.
Mr. Poole spent part of his imprisonment at a detention facility in Leavenworth,
Kansas operated by Corrections Corporation of America (“CCA”).
B. Proceedings in the District of Kansas
This case arises from a motion Mr. Poole filed in a criminal case against other
defendants, in the District of Kansas, related to events at the Leavenworth detention
facility (“CCA-Leavenworth”). The Kansas case, No. 16-cr-20032, began in April
2016 when Lorenzo Black, Karl Carter, and five other defendants were charged with
offenses related to smuggling contraband into CCA-Leavenworth.1 A few months
1
Although this case has been referred to as United States v. Black in prior
proceedings in this court and in the government’s brief, the caption on the district
court’s order that is being appealed and that is now being used in this appeal is
United States v. Carter. Although Mr. Black originally was the first named
defendant, Mr. Carter was the only defendant that remained in the case after
August 1, 2018, and Mr. Poole filed his Rule 41(g) motion in April 2019.
2
later the Federal Public Defender’s Office for the District of Kansas (“FPD”) sought
to intervene and filed a motion under Rule 41(g) for “Return of information.” R. at
16. The FPD alleged in its initial motion and in an amended motion that CCA
recorded meetings and calls between attorneys and clients at CCA-Leavenworth and
provided those recordings to the United States Attorney’s Office (“USAO”) for the
District of Kansas, in violation of the Sixth Amendment. Although the FPD did not
represent any of the defendants in the case, it represented a number of detainees at
the CCA-Leavenworth facility. Mr. Carter, as well as two other defendants from the
District of Kansas that were not defendants in the case, filed motions to join the
FPD’s Rule 41(g) motion. The district court ultimately appointed a special master to
investigate the allegations in the FPD’s Rule 41(g) motion.
In February 2018, the government filed a petition for a writ of mandamus
seeking an order directing the district court to terminate Phase III of the special
master’s investigation, quash subpoenas, and restrict the use of subpoenas going
forward. We granted the mandamus petition in limited part, directing “the district
court to limit the scope of investigation and inquiries to matters related to defendants
before the court in United States v. Black, No. 16-20032-JAR, and to other parties in
Black who have filed Rule 41(g) motions in that proceeding.” Supp. R., Vol. 1 at 16.
In its subsequent Findings of Fact and Conclusions of Law, the district court
recognized the “two categories of parties” set out in our mandamus order. Supp. R.,
Vol. 2 at 33. It then explained that it followed our “directive” and only addressed
motions that “[fell] within the scope of the Tenth Circuit’s mandate.”
Id. at 34
.
3
C. Mr. Poole’s Rule 41(g) Motion
In April 2019, Mr. Poole filed an “Addendum to Motion for Discovery
Summary Judgment of Seized Property under Fed. R. Crim. P. 41(g).” R. at 76
(some capitalization omitted). Although he stated that he wanted the court to allow
him to amend his “original Motion under Rule 41(g),”
id.,
there is no record that he
ever filed an earlier Rule 41(g) motion in District of Kansas case 16-cr-20032. He
indicated that he was attaching two documents as proof of prejudice from Sixth
Amendment violations while he was housed at CCA-Leavenworth. The district court
denied Mr. Poole’s motion. He now appeals from the district court’s decision.
II. Discussion
We review the district court’s denial of a Rule 41(g) motion for abuse of
discretion. See United States v. Copeman,
458 F.3d 1070
, 1072 (10th Cir. 2006).
In denying Mr. Poole’s Rule 41(g) motion, the district court stated:
This case deals exclusively with the Sixth Amendment claims of . . .
detainees prosecuted by the USAO for the District of Kansas. The [FPD]
has been appointed to represent all litigants from the District of Kansas who
seek relief on claims such as these. The Court has ordered the return of all
recordings to the FPD, which will then determine whether and to what
extent to seek relief for individual litigants under
28 U.S.C. § 2255
. That
office has not been appointed to represent litigants from the Western
District of Missouri. Thus, the Court finds no basis to allow non-District of
Kansas litigants to intervene in this matter for the purposes of obtaining
relief.
R. at 84-85.
On appeal, Mr. Poole fails to address the reasoning in the district court’s
denial order and instead argues the merits of his Rule 41(g) motion. Given that
4
Mr. Poole is not a defendant in United States v. Carter, he was not prosecuted in the
District of Kansas, his criminal proceedings concluded in 2015, and he was not
represented by the FPD during his post-conviction detention at CCA-Leavenworth,
he has not shown why he should be entitled to relief in the United States v. Carter
case. The district court’s decision denying Mr. Poole’s Rule 41(g) motion is
consistent with the scope of the case set out in its Findings of Fact and Conclusions
of Law, see, e.g., Supp. R., Vol. 2 at 19, 33-35, and with the directive in our
mandamus order, see Supp. R., Vol. 1 at 16. We see no abuse of discretion in the
district court’s denial of Mr. Poole’s Rule 41(g) motion.
III. Conclusion
We affirm the district court’s judgment. We grant Mr. Poole’s motion for
leave to proceed on appeal without prepayment of costs or fees. Because the relevant
statute excuses only “prepayment of fees,”
28 U.S.C. § 1915
(a)(1), we remind
Mr. Poole that he remains obligated to pay the full docketing and filing fee to the
Clerk of this Court.
Entered for the Court
Joel M. Carson III
Circuit Judge
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United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
TATONKA CAPITAL CORPORATION,
Plaintiff - Appellee,
v. No. 19-1450
(D.C. No. 1:16-CV-01141-MSK-NYW)
MICHAEL CONNELLY, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Michael Connelly, proceeding pro se,1 appeals from the amended final
judgment entered in favor of Tatonka Capital Corporation on its claim against him as
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Because Mr. Connelly is an attorney, we decline to give his appellate briefs
the same liberal construction that we would give pro se briefs filed by nonattorneys.
See Mann v. Boatright,
477 F.3d 1140
, 1148 n.4 (10th Cir. 2007) (“While we
generally construe pro se pleadings liberally, the same courtesy need not be extended
to licensed attorneys.” (citation omitted)).
a guarantor.2 After a bench trial and a partial grant of Mr. Connelly’s postjudgment
motion, the district court determined that Mr. Connelly was liable to Tatonka in the
principal sum of $618,000. Exercising jurisdiction under
28 U.S.C. § 1291
, we
affirm.
I. Background
Mr. Connelly served as the Chief Executive Officer of Mosaica Education for
about 15 years. In 2007, Tatonka and Mosaica entered into a Revolver Loan and
Security Agreement (the Revolver). The district court found that the Revolver was
“essentially a line of credit secured by Mosaica’s assets” and “[f]or several years
thereafter, Mosaica variously drew upon or made payments in accordance with the
Revolver.” Aplt. App., Vol. 2 at 134.
In 2013, Mosaica owed almost $5 million on the Revolver, but it continued to
request additional funds from Tatonka. Because of Tatonka’s own cash-flow
problems and its belief “that Mosaica had outstripped its borrowing capacity,”
Tatonka agreed to make certain short-term advances to Mosaica only if Mosaica’s
2
In his notice of appeal, Mr. Connelly states that he is also appealing from
“the orders previously entered in this action dismissing [his] counter-claims and
striking his jury demand.” Aplt. App., Vol. 2 at 212. And his opening brief includes
the following in his list of issues presented on appeal: “Did the court err in striking
Mr. Connelly’s jury demand?” and “Did the Court err in dismissing Mr. Connelly’s
counter-claims?” Aplt. Opening Br. at vii. But he does not offer any argument on
these two issues or otherwise address how the district court erred. He therefore has
waived these issues. See Utah Env’t Cong. v. Bosworth,
439 F.3d 1184
, 1194 n.2
(10th Cir. 2006) (“An issue mentioned in a brief on appeal, but not addressed, is
waived.”).
2
officers personally guaranteed repayment of Mosaica’s debts.
Id.
(brackets and
internal quotation marks omitted). Mr. Connelly signed six guaranty agreements.
Mosaica repaid the amounts of the short-term advances, but it defaulted on its
long-term indebtedness to Tatonka. It was then forced into receivership proceedings
in federal court in Georgia. At the conclusion of those proceedings, the receiver
determined that the remaining debt Mosaica owed Tatonka was $5,068,480.22.
In May 2016, Tatonka filed the underlying complaint against Mr. Connelly,
asserting one claim for breach of the guaranty agreements. Tatonka alleged that
under the guaranty agreements Mr. Connelly was liable for all amounts that Mosaica
still owed Tatonka. Ultimately, the district court found Mr. Connelly liable only on
the first of the guarantees he executed (the Guaranty), holding that Tatonka could not
enforce the later guarantees because Mr. Connelly mistakenly thought that the
guarantees covered only the short-term loans (which had been repaid), Tatonka knew
of Mr. Connelly’s mistake after he executed the Guaranty, but Tatonka did not
inform Mr. Connelly of his mistake before he executed the later guarantees. The
principal amount owed on the Guaranty was $618,000.
II. Discussion
“When a party appeals from a bench trial, we review the district court’s factual
findings for clear error and its legal conclusions de novo.” Castaneda v. JBS USA,
LLC,
819 F.3d 1237
, 1247 (10th Cir. 2016) (internal quotation marks omitted).
Mr. Connelly first argues that the Guaranty on its face covered only the Revolver
loans and Tatonka had failed to prove that any of the Mosaica debt to Tatonka arose
3
from those loans. He next argues that even if Tatonka had met its burden of proving
that he was liable under the terms of the Guaranty, the Guaranty should be reformed
based on mutual or unilateral mistake, just as the district court had reformed the later
five guarantees, and he should be relieved of liability. The parties agree that their
dispute is governed by Colorado law.
A. Terms of the Contract
Although Mr. Connelly does not dispute on appeal that Mosaica owed Tatonka
some $5 million, he argues that Tatonka failed to prove at trial that any of that debt
was on the Revolver loans and that the Guaranty covered only debt on Revolver
loans. The district court rejected this argument on the ground that Tatonka had in
fact proved that the debt arose from the Revolver loans. But we affirm on an
alternative ground, one which Tatonka has pursued both in district court and on
appeal. See Hasan v. AIG Prop. Cas. Co.,
935 F.3d 1092
, 1099 (10th Cir. 2019)
(“[W]e have discretion to affirm . . . on any ground adequately supported by the
record, so long as the parties have had a fair opportunity to address that ground.”
(original brackets and internal quotation marks omitted)). In our view, the language
of the Guaranty unambiguously covered all debt owed by Mosaica to Tatonka.
The Guaranty signed by Mr. Connelly states: “The Guarantor hereby,
personally and unconditionally . . . guarantees the due and punctual payment and
performance of each of the Obligations of the Borrower under the Loan Agreement
(the ‘Guaranteed Obligations’).” Aplee. Supp. App., Vol. 2 at 264. The Guaranty
identifies Michael Connelly as the Guarantor and Mosaica as the Borrower. See
id.
4
The Loan Agreement is identified as the “Revolving Loan and Security Agreement,
dated as of October 30, 2007 (as may be amended, supplemented or otherwise
modified from time to time . . . )”—that is, the Revolver.
Id.
Although the term
Obligations is not defined in the Guaranty, the Guaranty provides that “capitalized terms
. . . not defined herein shall have the meanings assigned to such terms in the [Revolver].”
Id.
And the Revolver defines Obligations as “all obligations now or hereafter owed to
Tatonka or any Affiliate of Tatonka by any Mosaica Party whether related or unrelated to
the Revolver Loans, this Agreement, or the Loan Documents.” Id. at 255. The text of the
Guaranty and the Revolver together could not be clearer in providing that the Guaranty
covers all debt of Mosaica to Tatonka.
Mr. Connelly contends that the “Guaranteed Obligations”—defined as
“Obligations of the Borrower under the Loan Agreement”—are simply the
obligations of Mosaica (the Borrower) under the Revolver (the Loan Agreement).
But this contention ignores that the word Obligations is capitalized, and therefore a
defined term, and the definition includes all debts to Tatonka. He argues that the
construction we adopt makes no sense because then the term Guaranteed Obligations
is identical to the word Obligations, and documents should not be interpreted in a
way that makes language superfluous. This argument ignores, however, that the
Guaranteed Obligations are “Obligations of the Borrower”—that is, they are only
those Obligations (as defined in the Revolver) owed by Mosaica. Yet the Obligations
defined by the Revolver include obligations by any “Mosaica Party,” id., and the
Revolver defines Mosaica Parties as Mosaica “and all Guarantors,” id. at 254.
5
Consequently, the term Guaranteed Obligations is not superfluous, because it
excludes debts owed by guarantors from the defined term Obligations. We conclude
that Mr. Connelly guaranteed each of Mosaica’s “Obligations” under the Revolver,
which meant he was guaranteeing all amounts owed by Mosaica to Tatonka.
Mr. Connelly next argues that this construction of the Guaranty is incompatible
with the Loan Modification Agreements executed in conjunction with the various
guarantees because those agreements show that the guarantees were limited to repayment
of the short-term advances. The problem with this argument is that we do not know what
the Loan Modification Agreements said because they were not admitted at trial. The
district court told Mr. Connelly that he could present them as evidence, but he did not do
so. He argues in his reply brief that Tatonka was the one with the agreements; yet he
does not explain why he could not have obtained a copy or why he failed to argue this
point in district court. Cf. United States v. Brewington,
944 F.3d 1248
, 1250-51 (10th
Cir. 2019) (appellant waived his argument that the district court should have considered
certain evidence when he never “asked the district court to admit [the evidence]”). We
therefore decline to speculate on how the Loan Modification Agreements may have
created an ambiguity in the crystal-clear Guaranty.
B. Mistake
As stated in Mr. Connelly’s opening brief, he “argued in the District Court that
the [guaranty] agreements should be reformed under the equitable doctrine of Mutual
Mistake or, in the alternative, rescinded under the equitable doctrine of Unilateral
Mistake, based on Tatonka’s silence despite its knowledge that Mr. Connelly and
6
Mosaica were mistaken in their understanding of the Guaranty Agreements.” Aplt.
Br. at 16. Not only did he make those arguments, but he prevailed on those
arguments with respect to five of his guarantees and was held not liable on them.
The reason he did not prevail with respect to the Guaranty (the first of the six
guarantees) is that the district court found that Tatonka did not know at the time the
Guaranty was executed that Mr. Connelly and Mosaica had misunderstood the
Guaranty. Thus, Mr. Connelly failed to escape liability under his equitable
arguments. Mr. Connelly does not cite to any evidence showing that the district court
clearly erred in making these findings. We must therefore affirm its decision.
III. Conclusion
For the foregoing reasons, we affirm the district court’s amended final
judgment.
Entered for the Court
Harris L Hartz
Circuit Judge
7 |
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United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
JOREL SHOPHAR; SASUAH
SHOPHAR,
Plaintiffs - Appellants,
v. No. 19-3281
(D.C. No. 5:19-CV-04052-HLT-KGG)
UNITED STATES OF AMERICA; (D. Kan.)
KATHLEEN L. SLOAN; ERICA
MILLER; KANSAS DEPARTMENT OF
CHILDREN AND FAMILIES; STACEY
BRAY; RICHARD KLEIN; MARC
BERRY; KVC HEALTH; SAARAH
AHMAD; KIMBERLY SMITH; PAUL
LAFLEUR; TEENA WILKIE; NATHAN
WILKIE,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Jorel and Sasuah Shophar, husband and wife, appeal from the district court’s
order holding that the federal courts have no power to grant or restore Mr. Shophar’s
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
custody over two children he fathered with a woman named Krissy Gorski. We have
jurisdiction under
28 U.S.C. § 1291
and affirm.
I. BACKGROUND & PROCEDURAL HISTORY
This is the second time Mr. Shophar has brought the matter of his and
Ms. Gorski’s children to our attention. See Shophar v. City of Olathe, 723 F. App’x
579 (10th Cir. 2018), cert. denied sub nom. Shophar v. Kansas,
140 S. Ct. 454
(2019). As we recounted in our prior disposition, Ms. Gorski left Mr. Shophar in
August 2015, taking their children with her. See
id. at 580
. Kansas authorities
investigated Mr. Shophar for domestic abuse, which he denied. See
id.
He in turn
accused Ms. Gorski of prostitution, drug use, and extortion. See
id.
Eventually,
Kansas placed the children in state custody. See
id.
In November 2015 and April 2016, Mr. Shophar filed pro se lawsuits in the
United States District Court for the District of Kansas, naming as defendants various
persons, organizations, and governmental entities involved in these events. See
id. at 580, 581
. He attempted to allege numerous causes of action arising from the
defendants’ purported “support” of Ms. Gorski.
Id.
The district court dismissed both
lawsuits for failure to state a claim. See
id. at 581
. We affirmed. See
id.
at 580–82.
In May 2019, Mr. Shophar, now joined by Mrs. Shophar, filed a new lawsuit in
the United States District Court for the Northern District of Illinois. They captioned
their complaint “petition for emergency writ of habeas corpus” and invoked two
federal habeas statutes,
28 U.S.C. §§ 2241
and 2254. R. at 13 (capitalization
normalized; emphasis omitted). Claiming next-friend status to Mr. Shophar’s
2
children with Ms. Gorski, the Shophars argued that the children were “illegally being
held in the State of Kansas as wards of the State of Kansas.”
Id.
(capitalization
normalized; emphasis omitted). The Shophars named as defendants:
the United States, which has allegedly failed to supervise the state and
local agencies that receive federal child-welfare funding;
Johnson County, Kansas, where child-custody proceedings took place;
Kathleen L. Sloan, judge of the Johnson County District Court, who
presided over the child-custody proceedings;
the Kansas Department of Children and Families (DCF);
Stacey Bray, a DCF caseworker;
KVC Health, a child-advocacy group and DCF contractor;
Saarah Ahmad, a KVC Health caseworker;
Kimberly Smith, also a KVC Health caseworker;
Erica Miller, a Johnson County assistant district attorney involved in the
child-custody proceedings;
Richard Klein, the children’s guardian ad litem;
Marc Berry, Ms. Gorski’s court-appointed attorney;
Paul LaFleur, Mr. Shophar’s estranged brother who participated in the
custody proceedings;
Teena Wilkie, a friend of Ms. Gorski who became a foster parent for the
children; and
3
Nathan Wilkie, Teena’s husband, who also became a foster parent for
the children.
The Shophars accused the defendants of violating the children’s Fourth and
Fourteenth Amendment rights, Mr. Shophar’s Fourth and Fourteenth Amendment
rights, several statutes relating to child welfare and civil rights, and certain federal
criminal statutes. In addition to habeas relief for the children, the Shophars sought
various forms of injunctive and declaratory relief, and damages from at least DCF,
KVC Health, LaFleur, and the Wilkies.
A little more than a month after the complaint was filed, the Northern District
of Illinois transferred the case to the District of Kansas, stating that “[t]he sole venue
for a
28 U.S.C. § 2241
habeas corpus petition is the judicial district where the
individuals whose release are being sought are located.” R. at 65.
Following transfer, eight of the fourteen defendants moved to dismiss. The
district court granted those motions and dismissed all defendants without prejudice,
including those who had yet to appear or move for dismissal. The district court held
that it must dismiss all claims brought by the Shophars purportedly on the children’s
behalf, because “a minor child cannot bring suit through a parent acting as next
friend if the parent is not represented by an attorney.” Meeker v. Kercher,
782 F.2d 153
, 154 (10th Cir. 1986) (construing Fed. R. Civ. P. 17(c)). But cf. Adams ex rel.
D.J.W. v. Astrue,
659 F.3d 1297
, 1301 (10th Cir. 2011) (holding that this rule does
not apply to parents of children appealing a denial of Social Security benefits). And
it said that it lacked jurisdiction over the claims brought by the parents themselves
4
for three reasons: (1) federal courts have no jurisdiction over child-custody disputes,
see 3E Charles Alan Wright et al., Federal Practice & Procedure § 3609.1, text
following n.32 (3d ed., Apr. 2020 update) (“[Despite recent cases cutting back on the
scope of the domestic relations exception,] child custody generally is a matter that
should be viewed as being at the heart of the domestic relations exception so that
only special circumstances should bring it within the purview of the jurisdiction of a
federal court.”); (2) the writ of habeas corpus does not extend to child-custody
determinations, see Lehman v. Lycoming Cty. Children’s Servs. Agency,
458 U.S. 502
, 511 (1982) (“federal habeas has never been available to challenge parental
rights or child custody,” including the custody of foster or adoptive parents over a
child); and (3) the Rooker-Feldman doctrine prohibits federal courts (other than the
Supreme Court) from reviewing state-court decisions, such as the child-custody
decisions at issue here, see D.C. Court of Appeals v. Feldman,
460 U.S. 462
, 42
(1983).
II. ANALYSIS
We review a district court’s real-party-in-interest rulings for abuse of
discretion. See Esposito v. United States,
368 F.3d 1271
, 1273 (10th Cir. 2004). We
review de novo a district court’s conclusion that it lacks subject-matter jurisdiction.
See Colo. Envtl. Coal. v. Wenker,
353 F.3d 1221
, 1227 (10th Cir. 2004).
In response to the district court’s decision prohibiting them from acting as next
friends to their children, the Shophars assert, without elaboration, that “[the
children’s] cases can be brought by their adult Next Friend when filing a Habeas
5
Corpus for State or Federal cases.” Aplt. Opening Br. at 9. “[S]tray sentences like
these are insufficient to present an argument.” Eizember v. Trammell,
803 F.3d 1129
,
1141 (10th Cir. 2015). The Shophars fail to even give us a lead to authority that
might support their assertion. They therefore waive whatever challenges they may
have had to this basis for dismissal. See Adler v. Wal-Mart Stores, Inc.,
144 F.3d 664
, 679 (10th Cir. 1998) (“Arguments inadequately briefed in the opening brief are
waived . . . .”).
The Shophars similarly fail to present an adequate argument that their claims
for declaratory or injunctive relief are not barred by the district court’s first two
grounds for holding that it lacked jurisdiction: the doctrines that habeas jurisdiction
does not extend to questions of child custody and that federal courts ordinarily lack
jurisdiction to decide child-custody questions. Their challenges to those rulings are
limited to an attack on the district court’s underlying premise, i.e., that this lawsuit is
fundamentally a child-custody dispute. See Aplt. Opening Br. at 4 (“The Action is
not a challenge to a State custody order . . . .”); id. at 6 (“The Court errs to document
the Appellants are looking to overturn a custody ruling.”); id. at 8 (“The Plaintiffs are
not [asking] the Federal Court of Kansas to ‘return to their custody.’” (brackets in
original)); id. at 13 (“This case i[s] not a ‘custody’ matter between a father and a
mother.”). This is so, they explain, because “[Mr. Shophar] has custody of his
children by DEFAULT of Krissy Gorski’s criminal conduct.” Id. at 6. The Shophars
appear to be saying that Gorski has forfeited custody by operation of law, so an order
6
returning the children to Mr. Shophar would not interfere with a state-court custody
order.
This attempt at clever lawyering fails. There is no reasonable way to read the
Shophars’ complaint (however obscure much of the language is) as anything but an
attempt to obtain custody of the children (and seek damages, which will be addressed
shortly). To the extent that the complaint seeks an injunction to give Mr. Shophar
custody of the children or seeks a declaration that he is entitled to that custody, the
district court lacked jurisdiction to resolve the merits.
There remain the damages claims in the complaint. But as best we can
decipher that pleading, all the alleged damages suffered by the Shophars resulted
from the court decisions regarding custody. In other words, an essential element of
their damages claims is that the state courts’ various custody decisions were in error.
And this court has recognized that a claim is barred by Rooker-Feldman when the
“claim has merit only if the state-court . . . order was unlawful.” Campbell v. City of
Spencer,
682 F.3d 1278
, 1284 (10th Cir. 2012). The Shophars’ arguments against
application of Rooker-Feldman amount to little more than complaints that they have
been wronged by violations of federal law and a federal court must therefore afford
them relief. But the lower federal courts have no authority—that is, no jurisdiction—
to give relief from state-court judgments, whether the Shophars participated in the
state-court proceedings (and presumably lost) or were mere interested bystanders.
The district court’s application of Rooker-Feldman was correct.
7
Finally, if there is any respect in which the Shophars’ claims fall outside the
reasons for dismissal relied upon by the district court, they have not explained it to
us. When faced with a similar situation, where the plaintiff had “made her complaint
unintelligible by scattering and concealing in a morass of irrelevancies the few
allegations that matter,” we stated that “it hardly matters whether the district court
dismissed [plaintiff’s] complaint because it believed all of her claims were barred by
Rooker-Feldman or simply because it could not separate the wheat from the chaff.”
Mann v. Boatright,
477 F.3d 1140
, 1148 (10th Cir. 2007) (internal quotation marks
omitted). Then, as here, “[i]t was not the district court’s job to stitch together
cognizable claims for relief from the wholly deficient pleading that [plaintiff] filed.
As we have frequently noted, we are loath to reverse a district court for refusing to do
the litigant’s job.”
Id.
We conclude that the district court properly dismissed without prejudice all
claims for the reasons it expressed.
III. CONCLUSION
We affirm the district court’s judgment.
Entered for the Court
Harris L Hartz
Circuit Judge
8 |
4,638,834 | 2020-12-02 18:00:41.748359+00 | null | http://www.ca10.uscourts.gov/opinions/19/19-1341.pdf | FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 2, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
KEIKO KAWAHARA,
Plaintiff - Appellant,
v. No. 19-1341
(D.C. No. 1:17-CV-02979-REB-SKC)
GUARANTY BANK AND TRUST, (D. Colo.)
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, KELLY, and CARSON, Circuit Judges.
_________________________________
Plaintiff-Appellant Keiko Kawahara appeals from the district court’s grant of
summary judgment to Guaranty Bank and Trust (Guaranty) on Ms. Kawahara’s
discrimination and retaliation claims under Title VII,
42 U.S.C. § 19811
, and the Age
Discrimination in Employment Act (ADEA). Exercising jurisdiction under
28 U.S.C. § 1291
, we affirm.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Ms. Kawahara acknowledges that the standards to be applied in evaluating a
claim of racial discrimination in employment are the same in § 1981 actions as those
applied in actions brought under Title VII. See Lounds v. Lincare, Inc.,
812 F.3d 1208
, 1221-22 (10th Cir. 2015). Further, the standards to be applied in evaluating a
§ 1981 retaliation claim are the same as those applied in actions brought under Title
VII. Parker Excavating, Inc. v. Lafarge W., Inc.,
863 F.3d 1213
, 1220 (10th Cir.
2017).
Background
Ms. Kawahara, a 58-year-old Asian woman, worked for Guaranty from 2007
until her termination on November 30, 2016. She served as the Vice President of
Retail Banking and reported to Mike Dipetro. She consistently received favorable
performance reviews and was never disciplined.
In September 2016, Guaranty merged with Home State Bank (Home State).
Prior to the merger, Guaranty and Home State identified overlaps in staffing and
developed a plan for a reduction in force (RIF). Mr. Dipetro was directed to reduce
his department’s expense by $1 million. He did this by performing a job mapping
analysis to find overlaps in staffing between Home State and Guaranty. He
determined that Ms. Kawahara’s position could be automated and included it in the
RIF. Ultimately, 65 employees were laid off in the RIF.
Ms. Kawahara had her termination meeting on July 25, 2016. At the meeting,
Ms. Kawahara claimed she had recorded allegedly inappropriate comments made by
Guaranty employees. The comments pertained to loans granted under the
Community Reinvestment Act (CRA), a federal law designed to encourage banks to
lend to low- and moderate-income individuals. See
12 U.S.C. § 2901
. Ms.
Kawahara later testified that she raised concerns about the CRA loans to Mr. Dipetro
three or four times between February 2015 and her termination meeting. She was
concerned about an employee referring to the CRA loans as “minority” loans and low
lending caps. She told Mr. Dipetro that the employee comments and loan caps were
“not right.”
2
After the meeting, Ms. Kawahara emailed Rebecca Adauto-Harren, Senior
Vice President of Human Resources, about discrimination concerns regarding
“minorities and the minority communities” within Guaranty. Guaranty investigated
Ms. Kawahara’s complaint. In her investigation interview, Ms. Kawahara reiterated
her complaints about the CRA loans. She also complained about her work situation,
citing her hours and workload as well her feeling that she was isolated at meetings.
However, the investigation found no discrimination.
After the termination meeting and the subsequent investigation, Ms. Kawahara
returned to Guaranty and was required to train her temporary replacement, Scott
Malan, a white male and Senior Vice President of Retail Banking for Home State.
After her termination in November 2016, Mr. Malan undertook Ms. Kawahara’s
responsibilities until those responsibilities were automated in April 2017.
Ms. Kawahara also claims there was other inappropriate conduct at Guaranty.
In October 2015, an image of Ms. Kawahara’s head was photoshopped onto a flyer
that she thought was demeaning. In a manager’s meeting, Mr. Dipetro referred to
Ms. Kawahara as an “old lady” in an apparent joke. Ms. Kawahara also alleges that
Mr. Dipetro ordered her to manipulate data to ensure that three male branch managers
were ensured payout bonuses. She also claimed that Mr. Dipetro was angry when a
female manager was entitled to a bonus.
Ms. Kawahara sued Guaranty, alleging claims of discrimination based on
gender and race/national origin, as well as a “gender-plus” claim, under Title VII, age
discrimination under the ADEA and retaliation under both acts. The district court
3
granted summary judgment to Guaranty on the discrimination claims because Ms.
Kawahara was unable to establish that Guaranty’s legitimate, nondiscriminatory
reason for her termination was pretextual. The district court also granted summary
judgment to Guaranty on the retaliation claims because Ms. Kawahara’s complaints
about the CRA loan program were insufficient to qualify as protected opposition and
were too remote in time from her termination meeting to infer a causal connection.
Discussion
We review de novo a district court’s grant of summary judgment. See Young
v. Dillon Cos., Inc.,
468 F.3d 1243
, 1249 (10th Cir. 2006). Summary judgment is
appropriate if “there is no genuine dispute as to any material fact.” Fed. R. Civ. P.
56(a). A dispute is genuine if “the evidence is such that a reasonable [trier of fact]
could return a verdict for the nonmoving party,” and a fact is material when it may
affect the outcome of the suit. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242
, 248
(1986). Although we view the evidence in the light most favorable to the non-
movant, a non-movant must point to significantly probative evidence that would
allow a trier of fact to find in her favor.
Id.
at 249–50.
A. Discrimination Claims
In an indirect case, this court reviews summary judgment under Title VII and
the ADEA using the burden shifting framework established in McDonnell Douglas
Corp. v. Green,
411 U.S. 792
, 802–04 (1973). Garrett v. Hewlett-Packard Co.,
305 F.3d 1210
, 1216 (10th Cir. 2002). This framework uses a three-step analysis. The
4
plaintiff first must establish a prima facie case of discrimination.
Id.
If the plaintiff
does, the defendant may then demonstrate a legitimate, non-discriminatory reason for
its action.
Id.
If the defendant comes forward with a legitimate, non-discriminatory
reason, the plaintiff may avoid summary judgment by demonstrating that the
defendant’s explanation is pretextual.
Id.
The parties do not dispute that the first
two steps of the analysis are satisfied. Ms. Kawahara’s claim therefore turns on
whether she can establish that the RIF was pretextual. Pretext may be shown when
the employer’s reasons for the adverse employment action are so implausible,
contradictory, or insubstantial that a trier of fact could find them unworthy of belief.
Pinkerton v. Colo. Dep't of Transp.,
563 F.3d 1052
, 1065 (10th Cir. 2009).
A plaintiff may show pretext in a RIF context by showing (1) her own
termination does not accord with the RIF criteria, (2) the RIF criteria were
deliberately falsified to terminate her, or (3) that the RIF generally was pretextual.
Pippin v. Burlington Resources Oil and Gas Co.,
440 F.3d 1186
, 1193 (10th Cir.
2006). Ms. Kawahara asserts two general theories of pretext. First, that she was
targeted for termination in the RIF because she complained about the CRA loan
program. Second, that her temporary replacement by Mr. Malan demonstrates
pretext.
Ms. Kawahara did not establish pretext. Ms. Kawahara does not provide
evidence that (1) her termination did not accord with the RIF criteria, (2) the RIF
criteria were deliberately falsified to terminate her, or (3) that the RIF generally was
pretextual. Pippin,
440 F.3d at 1193
. Conversely, there was evidence that her
5
termination was the result of an objective job mapping analysis used to reduce Mr.
Dipetro’s department’s expenses by $1 million. See Hinds v. Sprint/United Mgmt.
Co.,
523 F.3d 1187
, 1200 (10th Cir. 2008). Ms. Kawahara disagreed with caps on
loans to low- and moderate-income customers for home improvement (she thought
the cap should be $10,000 and the bank apparently set the amount at $7,500), and
certain business customers. She also disagreed with providing incentives to
employees for making these loans to customers, but her expression of concern (even
claiming that the bank “was breaking the law”) does not constitute significantly
probative evidence of pretext concerning her termination. At best, it demonstrates
that Ms. Kawahara aired her concerns with management and management did not
always act on her advice. Further, the fact that Guaranty had some discretion in
formulating the RIF plan and eliminated her position in favor of automating does not
render Guaranty’s stated basis “unworthy of belief.” See Pinkerton,
563 F.3d at 1065
.
Nor does Guaranty’s temporary replacement of her with Mr. Malan
demonstrate pretext given the evidence. If an employee is selected for RIF
termination based on the elimination of a position, the employee can show pretext by
showing that the position remained a “single, distinct position.” Pippin,
440 F.3d at 1194
. However, in April 2017, it is uncontroverted that Ms. Kawahara’s
responsibilities were automated. Mr. Malan’s class characteristics are beside the
point because he undertook Ms. Kawahara’s responsibilities temporarily until her
position was automated. See Mercer v. Capitol Mgmt. & Realty, Inc., 242 F. App’x
6
162, 163 (5th Cir. 2007) (finding no prima facie case of age discrimination based on
the class characteristics of “merely temporary” employees).2
Outside of her theories of pretext, Ms. Kawahara also asserts that the district
court ignored Ms. Kawahara’s evidence that Mr. Dipetro (1) ordered her to
manipulate reports to favor white male managers and (2) made her come into work
after jury duty to submit a report early. However, this evidence does not show that
the RIF was pretextual, Pippin,
440 F.3d at 1193
, and is not evidence that Ms.
Kawahara was discriminated against based on her protected class status. See Amro
v. Boeing Co.,
232 F.3d 790
, 798 n.6 (10th Cir. 2000); see also Jones v. Okla. City
Pub. Schs.,
617 F.3d 1273
, 1277 (10th Cir. 2010). Finally, Ms. Kawahara cites to the
incident where Mr. Dipetro called her an “old lady.” However, an isolated or
ambiguous comment is insufficient alone to support an inference of discrimination.
See Stone v. Autoliv ASP, Inc.,
210 F.3d 1132
, 1140 (10th Cir. 2000).
B. Retaliation Claims
To prove a retaliation claim, a plaintiff must demonstrate that she engaged in a
protected activity and that she was subject to a materially adverse action by her
employer that was causally connected to her protected activity. See Hansen v.
SkyWest Airlines,
844 F.3d 914
, 925 (10th Cir. 2016). A causal connection is
established where the plaintiff presents evidence “that justif[ies] an inference of
retaliatory motive, such as protected conduct closely followed by adverse action.”
2
This holding is not precedential, but it is persuasive.
7
Garrett,
305 F.3d at 1221
. Ms. Kawahara contends that her complaints about the
CRA loans were a “protected activity” and that this was the basis for her termination.
Ms. Kawahara’s complaints to Mr. Dipetro that the CRA loan program was
“not right” was not a protected activity. Although there are no “magic words” that
qualify a complaint as protected activity, the employee must convey to the employer
her concern of an employer’s unlawful practice. Hinds,
523 F.3d at 1203
. Ms.
Kawahara did not tell Mr. Dipetro that she thought Guaranty’s actions were unlawful.
Alternatively, Ms. Kawahara’s complaints about the CRA loan program were
not causally connected to her termination. Ms. Kawahara offers no evidence that her
complaints about the CRA loan program were causally connected to her termination
and she does not provide any evidence of how close in time her last complaint to Mr.
Dipetro was to her termination date.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
8 |
4,638,835 | 2020-12-02 18:01:01.503895+00 | null | https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv2037-84 | UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
EVELYN ARTHUR, et al.,
Plaintiffs,
v.
No. 18-cv-2037 (DLF)
DISTRICT OF COLUMBIA HOUSING
AUTHORITY, et al.,
Defendants.
MEMORANDUM OPINION
Before the Court is the District of Columbia Housing Authority (DCHA) and CIH
Properties, Inc.’s (CIH) renewed partial Motion to Dismiss the plaintiffs’ Second Amended
Complaint. Dkt. 74. For the reasons that follow, the Court will grant the defendants’ motion to
dismiss in part and deny it in part.
I. BACKGROUND1
Evelyn Arthur is a 79-year-old resident of Claridge Towers, a public housing facility in
the District of Columbia owned by the District of Columbia and operated by CIH. Second Am.
Compl. ¶ 9, Dkt. 70. Ms. Arthur is deaf, and her son, Robert, serves as her primary caregiver.
Id. ¶¶ 9–10. DCHA is the local governmental entity tasked with operating public housing
programs within the District of Columbia. Id. ¶ 11.
The claims against DCHA and CIH concern the adoption and implementation of DCHA’s
“phone call policy” as applied to Ms. Arthur. Id. ¶¶ 17, 21, 58–60. The policy requires visitors
1
Because the Court has previously set out the plaintiffs’ factual allegations in detail in an initial
Memorandum Opinion, see Mem. Op. of Apr. 11, 2020, Dkt. 57, it limits its recitation here to
those facts most relevant to the pending motion to dismiss.
to Claridge Towers to present identification to a security officer who then records the visitor’s
information and calls the resident to confirm that the resident wishes to receive the guest. Id.
¶ 17. If the resident does not answer, the visitor must leave the property. Id.
The plaintiffs allege that because Ms. Arthur is deaf, she cannot hear the phone ring when
she has a visitor. Id. ¶ 18. As a result, before January 2017, DCHA permitted Ms. Arthur’s son,
Robert, to visit her without calling ahead of time and to receive calls from and give permission to
his mother’s guests. Id.
On January 18, 2017, CIH rescinded its prior modification of the “phone call policy” for
Ms. Arthur after Robert Arthur installed a “video relay system” in his mother’s apartment. The
system “enables a deaf person to communicate with a hearing person by connecting both parties
to a trained sign-language interpreter.” Id. ¶¶ 19–21. The Arthurs complained about this
unexpected change because the video relay system was not “an effective solution” or
replacement for the “previous accommodation.” Id. ¶ 21. Ms. Arthur could only see the video
relay system “when she was in her bedroom, awake and looking in the direction of the
television.” Id. ¶ 20. According to the plaintiffs, “[t]he act of withdrawing the accommodation
marked the beginning of a series of recurring and continuing discriminatory acts” in which the
defendants refused to accommodate Ms. Arthur’s disability and retaliated against her and Robert
Arthur for their continued requests for accommodation. Id. ¶¶ 21–85.
The plaintiffs filed this action on August 30, 2018. See Compl., Dkt. 1. After the filing
of this suit, in October and November 2018, DCHA installed strobe lights and equipment in Ms.
Arthur’s apartment and provided rechargeable watches that flash to signal an incoming video
relay call. Second Am. Compl. ¶ 82. On October 26, 2018, DCHA accused Robert Arthur of
removing one of the strobe lights, id. ¶ 83, and three days later, “a person believed to be a public
2
housing maintenance man acting at the request of CIH entered Ms. Arthur’s apartment with a
key without notice,” id. ¶ 84. Ms. Arthur was “surprised and terrified” by the entry. Id.
Months later, on February 22, 2019, a CIH representative provided Ms. Arthur a “Final
Notice” informing her that a “notice to cure or quit has been prepared by our legal team” and that
she would “soon” receive another notice “in regard to appearing for a date that [she] would need
to vacate” the premises for failure to pay rent. Id. ¶ 85. According to the plaintiffs, Robert
Arthur had previously informed the representative about an “Emergency Rental Assistance
Payment” that was in process for back payments of rent. Id. “Upon information and belief” the
representative “already had in her possession a copy of the letter approving such payment” when
she sent the notice to Ms. Arthur. Id.
In its opinion of April 11, 2020, this Court determined that claims 1, 2, 3, 4, 6, 8, and 11
were time-barred under the one-year statute of limitations for Titles II, III, and IV of the ADA,
§ 504 of the Rehabilitation Act, and the D.C. Human Rights Act. Mem. Op. at 11–14. The
Court found that the alleged discriminatory conduct—the revocation of Ms. Arthur’s previously
granted accommodation to the phone call policy—occurred in January 2017 and that plaintiffs
“filed their initial complaint on August 30, 2018, more than a year after any of the alleged
discriminatory or retaliatory acts occurred.” Id. at 13.
In their Second Amended Complaint, the plaintiffs allege that they, as well as counsel on
their behalf, made additional requests to accommodate in September 2017, November 2017, and
January 2018, and that those additional requests came within one year of the filing date of their
initial complaint. Second Am. Compl. ¶¶ 58–60. Specifically, they allege that on or about
September 27, 2017, the plaintiffs urged CIH to suspend their phone call policy as an
accommodation for Ms. Arthur’s disability, that the request was temporarily granted for a four-
3
day period, and then denied again, id. ¶ 58; plaintiffs again requested the same accommodation
in November 2017 from CIH, but CIH ignored the request, id.; and in January 2018, plaintiffs’
counsel spoke with counsel for DCHA and again requested that the phone call policy be
suspended on a permanent basis, but DCHA denied the request, id.
II. LEGAL STANDARD
A. Motion to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows a defendant to move to
dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P.
12(b)(6). To survive a Rule 12(b)(6) motion, the complaint must contain factual matter
sufficient to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544
, 570 (2007). A facially plausible claim is one that “allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662
, 678 (2009). This standard does not amount to a specific probability requirement,
but it does require “more than a sheer possibility that a defendant has acted unlawfully.”
Id.
A
complaint need not contain “detailed factual allegations,” but alleging facts that are “merely
consistent with a defendant’s liability . . . stops short of the line between possibility and
plausibility.”
Id.
(internal quotation omitted).
Well-pleaded factual allegations are “entitled to [an] assumption of truth,”
id. at 679
, and
the court construes the complaint “in favor of the plaintiff, who must be granted the benefit of all
inferences that can be derived from the facts alleged,” Hettinga v. United States,
677 F.3d 471
,
476 (D.C. Cir. 2012) (internal quotation marks omitted). But the assumption of truth does not
apply to a “legal conclusion couched as a factual allegation.” Iqbal,
556 U.S. at 678
(internal
quotation marks omitted). An “unadorned, the defendant-unlawfully-harmed-me accusation” is
4
not credited; likewise, “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id.
Ultimately, “[d]etermining whether a
complaint states a plausible claim for relief . . . [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.”
Id. at 679
.
“The statute of limitations is an affirmative defense, and [it] may be invoked on a
12(b)(6) motion only ‘when the facts that give rise to the defense are clear from the face of the
complaint.’” Floyd v. Lee,
968 F. Supp. 2d 308
, 326 (D.D.C. 2013) (quoting Smith-Haynie v.
District of Columbia,
155 F.3d 575
, 578 (D.C. Cir. 1998)). “[S]tatute of limitations issues often
depend on contested questions of fact,” and as a result, “dismissal is appropriate only if the
complaint on its face is conclusively time-barred.” de Csepel v. Republic of Hungary,
714 F.3d 591
, 603 (D.C. Cir. 2013) (quoting Firestone v. Firestone,
76 F.3d 1205
, 1209 (D.C. Cir. 1996)).
In other words, “dismissal at the Rule 12(b)(6) stage is improper” if “a plaintiff’s potential
‘rejoinder to the affirmative defense [is not] foreclosed by the allegations in the complaint.’” Id.
at 608 (quoting Goodman v. Praxair, Inc.,
494 F.3d 458
, 466 (4th Cir. 2007) (en banc)).
III. ANALYSIS
The plaintiffs assert claims against DCHA and CIH under Title II of the Americans with
Disabilities Act (ADA) (claim 1 and 2), Second Am. Compl. ¶¶ 86–101, 102–08; against CIH
under Title III of the ADA (claim 3),
id.
¶¶ 109–15; against both DCHA and CIH under Title IV
of the ADA (claim 4),
id.
¶¶ 116–23; against DCHA under § 504 of the Rehabilitation Act
(claims 6 and 8), id. ¶¶ 131–36, 143–50; and against both DCHA and CIH under the D.C.
Human Rights Act (claim 11), id. ¶¶ 157–58.
DCHA and CIH urge dismissal based on two grounds. First, they argue that the
plaintiffs’ ADA and Rehabilitation Act claims remain time-barred because the plaintiffs’
5
September 2017, November 2017, and January 2018 requests for accommodation were, in
reality, “[r]equests for reconsideration of a previously denied request for accommodation” and
“[m]ere requests to reconsider . . . cannot extend the limitations periods applicable to civil rights
laws.” Defs.’ Mot. to Dismiss at 5 (quoting Del. State Coll. v. Ricks,
449 U.S. 250
, 261 n.15
(1980)). Second, they contend that the plaintiffs’ retaliation claims, even if timely, fail to state a
claim for which relief can be granted. Defs.’ Reply at 8. The Court will analyze each argument
in turn.
A. Timeliness of Claims
“Courts have divided on the question of whether a new limitations clock begins running
each time that a request for accommodations is made anew and denied again.” Floyd, 968 F.
Supp. 2d at 324. Compare Hill v. Hamstead Lester Morton Ct. Partners LP, 581 F. App’x 178,
180–81 (4th Cir. 2014) (stating that the statute of limitations clock resets whenever “a plaintiff
. . . renews a request for a previously denied accommodation”), Tobin v. Liberty Mut. Ins.,
553 F.3d 121
, 125–27, 134 (1st Cir. 2009) (similar); Cherosky v. Henderson,
330 F.3d 1243
, 1248
(9th Cir. 2003) (suggesting the same in dicta), with Stewart v. District of Columbia, No. 04-cv-
1444,
2006 WL 626921
, at *6 (D.D.C. Mar. 12, 2006) (holding that plaintiff’s failure to
accommodate claim “accrued as soon as her first request was denied”). Though the D.C. Circuit
has not yet addressed the issue, in this district, courts have generally heeded the Supreme Court’s
guidance that “mere requests to reconsider” are insufficient to reset the statute of limitations
clock, see Ricks,
449 U.S. at
261 n.15, while acknowledging that a denial of a new request for
accommodation can constitute a “discrete act[]” that is “independently discriminatory” such that
it resets the limitations clock, see Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101
, 113
(2002); see also Ledbetter v. Goodyear Tire & Rubber Co.,
550 U.S. 618
, 628 (2007) (“[I]f an
6
employer engages in a series of acts each of which is intentionally discriminatory, then a fresh
violation takes place when each act is committed.”). In Owens-Hart v. Howard University, for
example, the court determined that the “focus must be on discerning whether the facts presented
reflect a situation in which the employer commits multiple acts, each of which is independently
discriminatory, or one in which an employee attempts to rely on either the ongoing effects of the
employer’s single discriminatory act or the employee’s efforts to obtain reversal of that singular
act of alleged discrimination.”
220 F. Supp. 3d 81
, 93 (D.D.C. 2016) (internal quotation marks
omitted) (emphasis added); see also Long v. Howard Univ.,
512 F. Supp. 2d 1
, 23 (D.D.C. 2007)
(analyzing as a factual question whether requests for accommodation were new requests or
merely requests for reconsideration).
In deciding whether a request for accommodation constitutes a new request or merely a
request for reconsideration, courts have generally considered five factors. These include whether
the request (1) was made as part of a formal appeals process, see Soignier v. Am. Bd. of Plastic
Surgery,
92 F.3d 547
, 553 (7th Cir. 1996); (2) was for the same previously denied
accommodation, see Owens-Hart, 220 F. Supp. 3d at 94; (3) concerned the same or substantially
similar disability, Stewart,
2006 WL 626921
, at *6; (4) was made significantly later in time than
the initial request, see Owens-Hart, 220 F. Supp. 3d at 94; or (5) came after a change in
circumstances sufficient to alter the nature of the request or the burden of such an
accommodation to the defendant, see Tobin,
553 F.3d at 133
; Barrett v. Covington & Burling
LLP,
979 A.2d 1239
, 1249–50 (D.C. 2009).
Here, based on the complaint alone, the Court cannot determine whether the September
2017, November 2017, and January 2018 requests for accommodation are untimely because the
complaint does not “foreclose[]” the plaintiffs’ potential “rejoinder[s] to the affirmative defense”
7
of the statute of limitations. See de Csepel, 714 F.3d at 608. “The statute of limitations is an
affirmative defense, and [it] may be invoked on a 12(b)(6) motion only when the facts that give
rise to the defense are clear from the face of the complaint.” Floyd, 968 F. Supp. 2d at 326
(internal quotation marks omitted). According to the plaintiffs, in July 2017, Ms. Arthur
requested and received permission to “have a live-in aid” and “additional hearing-impaired
hardware,” Second Am. Compl. ¶ 42, and in September 2017, the defendants temporarily granted
and then later revoked an accommodation to the phone call policy, id. ¶ 58. At this time, the
Court lacks sufficient information about these intervening events to determine whether they
altered either the nature of the requests for accommodation or the burden of the desired
accommodation such that the subsequent denials could be viewed as new, discrete acts of
discrimination within the limitations period, rather than mere denials to reconsider the plaintiffs’
original request for accommodation. See Tobin,
553 F.3d at
132–33 (citing Long,
512 F. Supp. 2d at 17
). Accordingly, the Court will deny the defendants’ motion to dismiss with regards to
claims 1, 2, 3, 6, and 11.
B. Plaintiffs Fail to Plausibly State a Retaliation Claim
The outcome is different, however, with regards to claims 4 and 8. The plaintiffs allege
in claim 4 that DCHA and CIH retaliated against the plaintiffs in violation of § 503 of the ADA
when a maintenance staff member “unlawful[ly] ent[ered] into Ms. Arthur’s home in October
2018” and again when CIH issued a “Final Notice” to “cure or quit” in February 2019. Second
Am. Compl. ¶¶ 84–85, 120. Based on the same conduct, the plaintiffs allege in claim 8 that
8
DCHA retaliated against them in violation of § 504 of the Rehabilitation Act.2 Id. ¶¶ 84–85,
147. The Court will dismiss both claims.
To state a claim of retaliation under the ADA and the Rehabilitation Act, a plaintiff must
show “that 1) she engaged in protected activity, 2) she was subjected to adverse action by the
defendant[,] and 3) there is a causal connection between the adverse action and the protected
activity.” Alston v. District of Columbia,
561 F. Supp. 2d 29
, 40 (D.D.C. 2008) (internal
quotation marks omitted); see also Walker v. District of Columbia,
279 F. Supp. 3d 246
, 271
(D.D.C. 2017) (explaining that “[c]ourts frequently interpret the ADA and the Rehabilitation Act
the same way,” and that the standards articulated in the Title VII employment context apply to
both ADA and Rehabilitation Act claims). A plaintiff need not plead a prima facie case to
survive a motion to dismiss. Swierkiewicz v. Sorema N.A.,
534 U.S. 506
, 510 (2002) (“The
prima facie case . . . is an evidentiary standard, not a pleading requirement.”); Gordon v. U.S.
Capitol Police,
778 F.3d 158
, 161–62 (D.C. Cir. 2015) (applying Swierkiewicz in the retaliation
context). But she must plead facts sufficient to nudge her claims “across the line from
conceivable to plausible,” Iqbal,
556 U.S. at 680
(quoting Twombly,
550 U.S. at 570
); Menoken
v. McGettigan,
273 F. Supp. 3d 188
, 201–03 (D.D.C. 2017) (applying Iqbal’s pleading standard
in the retaliation context), and courts may look to the prima facie elements as a guide in
accessing the plausibility of a plaintiff’s claim for relief, see
id.
(analyzing plausibility through
2
The Court previously determined that the other alleged retaliatory acts in claims 4 and 8 are
time-barred as each discrete act occurred before August 30, 2017. See Mem. Op. of Apr. 11,
2020 at 13. To the extent the plaintiffs identify the denial of requests for accommodation as
retaliatory acts, see Second Am Compl. ¶¶ 120, 147, the caselaw in this district is clear that a
denial of a request for accommodation alone does not amount to a retaliatory action. See
Hargrove v. AARP,
205 F. Supp. 3d 96
, 116 (D.D.C. 2016) (“[T]he denial of a request for
accommodation does not by itself support a claim of retaliation based on the request.” (internal
quotation marks omitted)); Buie v. Berrien,
85 F. Supp. 3d 161
, 178 (D.D.C. 2015) (noting that a
defendant’s failure to accommodate “does not supply grounds for a separate retaliation claim”).
9
the lens of the three prima facie elements for a claim of retaliation). A plaintiff may fail to meet
her burden when, crediting all inferences in her favor, her charge of retaliation “is not plausible
in light of [an] ‘obvious alternative explanation.’” See Woods v. City of Greensboro,
855 F.3d 639
, 647–48 (4th Cir. 2017) (quoting Iqbal, 556 U.S at 678).
Applying this standard, the October 2018 unannounced visit of a maintenance staff
member did not constitute an adverse action.3 “Retaliation claims do not protect an individual
from all retaliation, but from retaliation that produces an injury or harm.” Walker, 279 F. Supp.
3d at 271 (internal quotation marks and brackets omitted). An individual is not protected from
“petty slights or minor annoyances.” Burlington Northern & Santa Fe R.R. Co. v. White,
548 U.S. 53
, 68 (2006). The question is whether the alleged action would “dissuade a reasonable
[person] from making or supporting a charge of discrimination.” Walker, 279 F. Supp. 3d at 274
(quoting Weber v. Battista,
494 F.3d 179
, 186 (D.C. Cir. 2007)). Though Ms. Arthur alleges she
was “surprised and terrified” by the unannounced entry of maintenance staff, Second Am.
Compl. ¶ 84, her subjective shock and dismay alone did not convert the unannounced entry into
an adverse action, see Buie, 85 F. Supp. 3d at 178 (“The law is clear that purely subjective
injuries . . . are not adverse actions.”) (internal quotation marks and brackets omitted); Koch v.
Schapiro,
699 F. Supp. 2d 3
, 14 (D.D.C. 2010) (dismissing plaintiff’s retaliation claim because
his allegations that his supervisor yelled at and verbally assaulted him did not qualify as adverse
actions). While perhaps inappropriate or discourteous, the unannounced entry by the
maintenance staff member did not result in any harm. See Second Am. Compl. ¶ 84. He merely
3
Because the defendants do not directly challenge whether the plaintiffs engaged in a protected
activity, the Court assumes for the purposes of this analysis that the plaintiffs’ requests for
accommodation and filing of this lawsuit were protected under the ADA and Rehabilitation Act.
See Defs.’ Reply at 11 (“[a]ssuming arguendo” that the plaintiffs’ requests “are protected
activities”).
10
“took photographs . . . of the DCHA strobe light equipment . . . and left.”
Id.
These actions
would not plausibly dissuade a reasonable person from making a charge of discrimination. See
Walker, 279 F. Supp. 3d at 274 (explaining a plaintiff must show the action resulted in a
“tangible consequence in her circumstances”).
For a different reason, the plaintiffs’ allegations concerning the February 2019 Final
Notice to cure or quit also do not state a claim for retaliation. Here, the Court will assume that
the Final Notice constituted an adverse action. See Neudecker v. Boisclair Corp.,
351 F.3d 361
,
363–64 (8th Cir. 2003) (holding that a plaintiff sufficiently alleged an adverse action under the
Rehabilitation Act when he alleged the defendant “threatened to evict him as reprisal for his
complaints”). But see Congdon v. Strine,
854 F. Supp. 355
, 364 (E.D. Pa. 1994) (holding that a
“one-time threat” of eviction did not violate the Fair Housing Act’s anti-retaliation provisions
when the defendant “took no further action to evict”). Even so, the plaintiffs’ claim fails because
they do not plausibly allege facts supporting a causal connection between the alleged retaliatory
action and the protected activity.
The plaintiffs offer no factual allegations that support a direct causal connection between
their requests for accommodation and the Final Notice. See Ayissi-Etoh v. Fannie Mae,
712 F.3d 572
, 576 (D.C. Cir. 2013) (explaining that direct evidence is usually a “statement that itself
shows” “discriminatory intent”). Nor do they allege facts that plausibly support a finding of
causation based on temporal proximity or other circumstantial evidence. With respect to
temporal proximity, CIH issued the Final Notice six months after the plaintiffs filed their
complaint in this case, see Compl., Dkt. 1, and thirteen months after the plaintiffs lodged their
most recent request for accommodation, see Second Am. Compl. ¶¶ 58, 85. Such a lengthy gap
between the alleged protected activity and the alleged retaliatory action undermines any
11
inference of a causal connection between the two. See Jones v. Greenspan,
402 F. Supp. 2d 294
,
300 (D.D.C. 2005) (“To qualify as a causal connection . . . , the temporal proximity between the
[defendant’s] knowledge of the protected activity and the adverse . . . action must be ‘very
close’”) (quoting Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268
, 273 (2001)); see also Drielak
v. Pruitt,
890 F.3d 297
, 301 (D.C. Cir. 2018) (stating that a six-month gap is “far from the
temporal proximity Clark County thought worthy of evidentiary value”). Courts in “this Circuit
ha[ve] generally found that a two- or three-month gap between the protected activity and the
adverse employment action does not establish the temporal proximity needed to prove
causation,” Jones v. D.C. Water & Sewer Auth.,
922 F. Supp. 2d 37
, 42 (D.D.C. 2013), and
“[t]he case law supports the conclusion that, as a matter of law, a six-month delay by itself is
insufficient to demonstrate the close temporal proximity necessary to infer a retaliatory
motivation,” Cooke v. Rosenker,
601 F. Supp. 2d 64
, 88 (D.D.C. 2009).
Plaintiffs have also failed to allege facts that could plausibly support a causal connection
based on circumstantial evidence. The complaint alleges that when the defendants issued the
Final Notice in February 2019, the defendants had already received a letter from the plaintiffs
informing the defendants that Ms. Arthur had been approved for an “Emergency Rental
Assistance Payment.” Second Am. Compl. ¶ 85. But it does not allege that Ms. Arthur had
cured her delinquency before the notice was issued or that the defendants’ focus on her
delinquency was pretextual because the defendants treated Ms. Arthur differently than other
similarly situated tenants or violated a policy or procedure in issuing the Final Notice. See
Brown v. Sessoms,
774 F.3d 1016
, 1023 (D.C. Cir. 2014) (holding that a plaintiff had raised her
right to relief “above the speculative level” where she pleaded that the university had granted
tenure to “a similarly-situated employee who [was] not in her protected class”). To the contrary,
12
the complaint confirms that defendants waited at least three months before they issued a Final
Notice for Ms. Arthur’s failure to pay timely rent, and they did so after providing her with new
accommodations in October and November 2018. Second Am. Compl. ¶ 82. Moreover, the
defendants never evicted Ms. Arthur, and she continues to “reside[] in Claridge Towers.” Id. ¶ 9.
A plaintiff need not “anticipate legitimate, non-discriminatory reasons . . . nor allege pretext to
survive a motion to dismiss.” Easaw v. Newport, 253 F. Supp. 3d. 22, 26–27 (D.D.C. 2017).
But “[i]n assessing causation in the retaliation context, courts must ask whether there was an
unbroken connection between the wrongful act and the injury, or whether there was some new
and independent cause intervening between the wrong and the injury.” Buie, 85 F. Supp. 3d at
179 (internal quotation marks omitted). Here, the allegations in the complaint, even when
viewed in the light most favorable to the plaintiffs, support an explanation for the defendants’
conduct that is “so obviously . . . irrefutably sound[,] . . . unambiguously nondiscriminatory[,]
and non-pretextual” that “it renders [the plaintiffs’ claim of retaliation] implausible.” Woods,
855 F.3d at 649; see also Easaw, 253 F. Supp. 3d at 32 (dismissing a plaintiff’s race
discrimination complaint where, among other deficiencies, “an entirely race-neutral rationale”
put forward in the complaint “undermine[d]” her claim that she was terminated from her
employment because of her race).
CONCLUSION
For the foregoing reasons, the Court grants DCHA and CIH’s motion to dismiss with
respect to claims 4 and 8 and denies the motion with respect to claims 1, 2, 3, 6, and 11. A
separate order consistent with this decision accompanies this memorandum opinion.
________________________
DABNEY L. FRIEDRICH
December 2, 2020 United States District Judge
13 |
4,638,837 | 2020-12-02 18:01:54.148622+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0858-34-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0858V
UNPUBLISHED
MICHAELENE WIDSON, Chief Special Master Corcoran
Petitioner, Filed: October 28, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On June 11, 2019, Michaelene Widson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of a Tetanus-Diphtheria-acellular Pertussis (“Tdap”)
vaccine administered on May 15, 2017. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On October 26, 2020, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
1. Specifically, Respondent “has reviewed the facts of this case and concluded that
[P]etitioner’s claim meets the Table criteria for SIRVA.” Id. at 5.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 |
4,638,838 | 2020-12-02 18:01:55.105936+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0318-36-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-318V
UNPUBLISHED
CHRISTOPHER VAN SCOY, Chief Special Master Corcoran
Petitioner, Filed: October 30, 2020
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre
Syndrome (GBS)
Respondent.
Timothy James Lessman, Knutson & Casey Law Firm, Mankato, MN, for petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On February 28, 2019, Christopher Van Scoy filed a petition for compensation
under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2
(the “Vaccine Act”). Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”)
as a result of an influenza (“flu”) vaccine administered on March 18, 2017. Petition at 1;
Stipulation, filed on October 28, 2020, at ¶¶ 1-2, 4. Petitioner further alleges that the
vaccine was administered within the United States; that he experienced the residual
effects of his alleged injury for more than six months; and that there has been no prior
award or settlement of a civil action for damages on his behalf as a result of his condition.
Petition at 1-3; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner’s alleged injury
meets the Table requirements for GBS; denies that the flu vaccine, or any other vaccine,
caused or aggravated petitioner’s alleged GBS, or any other injury, and further denies
that petitioner’s current disabilities are sequelae of a vaccine-related injury.” Stipulation
at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Nevertheless, on October 28, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $100,000.00 in the form of a check payable to Petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2 |
4,638,839 | 2020-12-02 18:01:56.007355+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv0772-60-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0772V
(not to be published)
CHERYL THOMPSON,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 29, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Jeffrey S. Pop, Jeffrey S. Pop & Associates, Beverly Hills, CA, for Petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On May 31, 2018, Cheryl Thompson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration caused by an influenza vaccine administered on November 22, 2016.
(Petition at 1). On August 27, 2020, a decision was issued awarding compensation to
Petitioner based on the parties’ stipulation. (ECF No. 50).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated October 6,
2020, (ECF No. 55), requesting a total award of $17,223.62 (representing $16,541.60 in
fees and $682.02 in costs). In accordance with General Order #9, Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 55-4).
Respondent reacted to the motion on October 20, 2020 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
56). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $17,223.62 (representing $16,541.60 in fees and $682.02 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel. In
the absence of a timely-filed motion for review (see Appendix B to the Rules of the Court),
the Clerk shall enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2 |
4,638,841 | 2020-12-02 18:01:57.743076+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0944-23-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0944V
UNPUBLISHED
LEANNE ROTH, Chief Special Master Corcoran
Petitioner, Filed: October 28, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Shoulder Injury Related to Vaccine
Respondent. Administration (SIRVA)
Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for petitioner.
Mallori Browne Openchowski, U.S. Department of Justice, Washington, DC, for
respondent.
RULING ON ENTITLEMENT1
On June 28, 2019, Leanne Roth filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on
October 20, 2017. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On October 23, 2020, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1. Specifically, Respondent “believes that [P]etitioner’s alleged injury is consistent with a
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
SIRVA, as defined on the Vaccine Injury Table”. Id. at 4. Respondent further agrees that
Petitioner suffered the residual effects of her injury for more than six months. Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 |
4,638,842 | 2020-12-02 18:01:58.555875+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv0088-78-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0088V
(not to be published)
JENNIFER ROBINSON,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 30, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Isaiah Richard Kalinowski, Maglio Christopher & Toale, PA, Washington, DC, for
Petitioner.
Heather Lynn Perlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 18, 2018, Jennifer Robinson filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered from Guillain-Barré syndrome as a
result of influenza and Tetanus Diphtheria acellular Pertussis vaccines administered on
August 31, 2015. (Petition at 1-6). On August 27, 2020, a decision was issued awarding
compensation to Petitioner in the amount of $165,113.59. (ECF No. 67).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated October 19,
2020, (ECF No. 72), requesting a total award of $44,272.58 (representing $43,051.70 in
fees and $1,220.88 in costs). In accordance with General Order #9, counsel for Petitioner
represents that she incurred no out-of-pocket expenses. (Id. at 2). Respondent reacted
to the motion on October 26, 2020 indicating that he is satisfied that the statutory
requirements for an award of attorney’s fees and costs are met in this case and defers to
the Court’s discretion to determine the amount to be awarded. (ECF No. 73). On October
26, 2020, Petitioner filed a reply requesting a decision awarding the fees and costs
requested in full. (ECF No. 74).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $44,272.58 (representing $43,051.70 in fees and $1,220.88 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
Petitioner requests payment be forwarded to Maglio Christopher & Toale, PA, 1605
Main Street, Suite 710, Sarasota, Florida, 34236. In the absence of a timely-filed motion
for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in
accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2 |
4,638,843 | 2020-12-02 18:01:59.510742+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv1220-37-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1220V
(not to be published)
JOSHUA MONNENS and ELIZABETH
MONNENS, on behalf of R.M., a minor Chief Special Master Corcoran
child ,
Filed: October 28, 2020
Petitioner,
v. Special Processing Unit (SPU);
Attorney’s Fees and Costs
SECRETARY OF HEALTH AND
HUMAN SERVICES,
Respondent.
Glynn Weldon Gilcrease, Jr., Law Office of Glynn W. Gilcrease, Jr., PC, Tempe, AZ, for
Petitioner.
Voris Edward Johnson, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 16, 2019, Joshua and Elisabeth Monnens filed a petition for
compensation under the National Vaccine Injury Compensation Program, 42 U.S.C.
§300aa-10, et seq., 2 (the “Vaccine Act”), on behalf of their minor child, R.M. Petitioners
allege that R.M. suffered from an intussusception as a result of receiving a rotavirus
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
vaccination on June 11, 2018. (Petition at 1). On July 15, 2020, a decision was issued
awarding compensation to Petitioner based on the Respondent’s proffer. (ECF No. 27).
Petitioner has now filed a motion for attorney’s fees and costs, dated September
3, 2020, (ECF No. 32), requesting a total award of $25,064.74 (representing $18,150.00
in fees and $6,914.74 in costs). In accordance with General Order #9, Petitioners filed a
signed statement indicating that they incurred no out-of-pocket expenses. (ECF No. 35).
Respondent reacted to the motion on September 8, 2020 indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case and defers to the Court’s discretion to determine the amount to be awarded. (ECF
No. 33). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $25,064.74 (representing $18,150.00 in fees and $6,914.74 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2 |
4,638,844 | 2020-12-02 18:02:00.485398+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv1197-62-0 | CORRECTED
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1197V
(not to be published)
SUSAN MOGAVERO,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 30, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Theodore J. Hong, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On August 13, 2018, Susan Mogavero filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left shoulder injury related to vaccine
administration as a result of an influenza vaccine received on September 23, 2016.
(Petition at 1). On September 16, 2020, a decision was issued awarding compensation
to Petitioner based on the Respondent’s proffer. (ECF No. 50).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated October 9,
2020, (ECF No. 54), requesting a total award of $48,716.69 3 (representing $47,910.90 in
fees and $805.79 in costs). In accordance with General Order #9, Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 54-3).
Respondent reacted to the motion on October 26, 2020 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
57). On October 27, 2020, Petitioner filed a reply requesting a decision awarding the fees
and costs requested in full. (ECF No. 58).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $48,716.69 (representing $47,910.90 in fees and $805.79 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
Petitioner requests payment be forwarded to Maglio Christopher & Toale, PA, 1605
Main Street, Suite 710, Sarasota, Florida, 34236. In the absence of a timely-filed motion
for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in
accordance with this decision. 4
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Petitioner’s counsel notified the staff attorneys office that there was an error in the total amount requested
in Petitioner’s motion for fees. The total amount of fees and costs requested by Petitioner should equal
$48,716.69, however the motion states a total of $47,716.69.
4 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2 |
4,638,845 | 2020-12-02 18:02:01.380387+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2020vv0709-20-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-0709V
UNPUBLISHED
FLORAIDA MARTINEZ, as natural Chief Special Master Corcoran
guardian and legal representative of
her minor daughter, M.M., Filed: October 27, 2020
Petitioner, Special Processing Unit (SPU);
v. Ruling on Entitlement; Concession;
Table Injury; Influenza (Flu) Vaccine;
SECRETARY OF HEALTH AND Guillain-Barre Syndrome (GBS)
HUMAN SERVICES,
Respondent.
Lawrence R. Cohan, Saltz, Mongeluzzi & Bendesky, Philadelphia, PA, for petitioner.
Terrence Kevin Mangan, Jr., U.S. Department of Justice, Washington, DC, for
respondent.
RULING ON ENTITLEMENT1
On June 12, 2020, Floraida Martinez, as natural guardian and legal representative
of her minor daughter, M.M., filed a petition for compensation under the National Vaccine
Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”).
Petitioner alleges that M.M. suffered Guillain-Barre Syndrome (“GBS”) as a result of an
influenza (“flu”) vaccine received on December 13, 2017. Petition at 1. The case was
assigned to the Special Processing Unit of the Office of Special Masters.
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
On October 26, 2020, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1. Specifically, Respondent agrees “that petitioner’s alleged injury is consistent with GBS
and that it meets the requirements of a Table injury claim for GBS stemming from the flu
vaccination on December 13, 2017.” Id. at 4. Respondent further agrees that he “did not
identify any other causes for M.M.’s injury, and records show that she suffered the
sequelae of this injury for more than six months . . . . Therefore, based on the record as
it now stands, petitioner has satisfied all legal prerequisites for compensation under the
Act.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 |
4,638,846 | 2020-12-02 18:02:02.355278+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0495-28-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0495V
UNPUBLISHED
CHARLES MARION, Chief Special Master Corcoran
Petitioner, Filed: October 27, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Dismissal; Site of Vaccination;
HUMAN SERVICES, Onset; Prior Shoulder Pain; Influenza
(Flu) Vaccine; Shoulder Injury
Respondent. Related to Vaccine Administration
(SIRVA)
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On April 3, 2019, Charles Marion filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered a right shoulder injury related to vaccine
administration (“SIRVA”) caused in fact by the influenza (“flu”) vaccine administered to
him on August 13, 2016. Petition at 1, ¶¶ 2, 14. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
I. Procedural History
Along with the petition in this case, Petitioner filed his affidavit and medical records.
Exhibits 1-9, ECF No. 1. He alleges that he received a flu vaccine on August 13, 2016, in
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
his right shoulder, but that “the young woman working behind the counter in the pharmacy
changed the location [in the record of vaccination] to [his] left arm, [which was] not true.”
Exhibit 9 at ¶ 2. Additionally, Petitioner alleges that he felt sharp pain in his right shoulder
immediately upon vaccination “that has turned into a debilitating, aching pain.” Id. at ¶ 5.
Although Petitioner admits that he “had a previous left shoulder injury, which completely
resolved prior to receipt of the influenza vaccine on August 13, 2016” (id. at ¶ 4 (emphasis
added); accord. Petition at ¶ 3), he maintains he “ha[s] no history of right shoulder pain
or injuries.” (Petition at ¶ 3 (emphasis added)).
During the initial status conference, held telephonically on June 3, 2019, the parties
discussed the lack of evidence in the medical records supporting Petitioner’s assertions,
along with specific instances when this information contradicts Petitioner’s claims. Order
issued June 7, 2019, ECF No. 8. Respondent’s counsel proposed that additional medical
records and other evidence be obtained to address these deficiencies. Id.
On June 11, 2019, Petitioner filed a more comprehensive vaccine record which
included the consent form signed by Petitioner. Exhibit 10, ECF No. 9. However, this
consent form provides further evidence that Petitioner received the flu vaccine in his left
deltoid, rather than right arm as alleged. For example, under the section listing the site of
administration, the vaccine administrator circled the option for LA rather than RA. Id. at 6.
Over the subsequent six-month period, Petitioner was granted additional time on
two occasions to obtain further evidence to support his claims. Non-pdf Orders issued
Oct. 8 and Nov. 12, 2019. On December 9, 2019, he filed updated medical records from
his current primary care provider (“PCP”), David Mayer, D.O., at Crestwood Family
Practice, and better copies of the medical record from a November 21, 2016 visit to
Community Urgent Care of Madison. Exhibits 11-12, ECF No. 14; Compare Exhibit 6 with
Exhibit 12. These records provided no additional evidence regarding the deficiencies
noted in Petitioner’s case.
Telephonic status conferences were held on January 21 and February 27, 2020,
and I issued an order to show cause on March 26, 2020. ECF No. 17. In this order, I
stressed that Petitioner needed to provide additional evidence regarding his site of
vaccination, onset of his right shoulder pain, and notations in the medical records which
indicate that he experienced right shoulder pain several years prior to vaccination. Id. at
1.
Over the subsequent five-month period, Petitioner filed additional medical records
from Dr. Mayer, described by Petitioner as “more complete records” (Status Report at 1,
filed Aug. 31, 2020, ECF No. 26), an unsigned statement from his wife, and updated
medical records from his orthopedist. Exhibits 13-15. In a status report filed on August
2
31, 2020, Petitioner indicated he “does not have any additional evidence to file in this
case.” Status Report at 2.
Petitioner has been afforded more than fourteen months to produce any additional
evidence. The matter is now ripe for adjudication.
II. Factual History as Set Forth in Medical Records
The earliest medical records filed in this case are from a visit to David S.H. Bell,
M.D. on January 28, 2013. Exhibit 8 at 15-16.3 Dr. Bell appears to be a former PCP who
treated Petitioner until late 2015. Exhibit 7 at 4. This record indicates Petitioner had
experienced prior pain in his left knee and right shoulder. His left knee pain was described
as “still a little painful,” but his right shoulder pain was noted to be “resolved.” Exhibit 8 at
15. In the medical record from a February 10, 2014 visit to Dr. Bell, both left knee and
right shoulder pain are described as “[r]esolved.” Exhibit 7 at 14.
Throughout 2014-15, Petitioner was seen by Dr. Bell on five occasions for common
medical conditions such as high blood pressure and cholesterol, gastroesophageal reflux
disease (GERD), sleep apnea, and morbid obesity. Exhibit 7 at 2-18. Beginning in March
2015, Dr. Bell suspected Petitioner might be suffering from gallstones and then kidney
stones. Id. at 10, 4-5 (respectively). Petitioner sought treatment from Dr. Vaughan twice
in March and April 2016. Exhibit 8 at 3-10.
On August 13, 2016, Petitioner received a flu shot from Rite Aid Pharmacy.
Exhibits 1, 10. The vaccine record lists the site of vaccination as “Left Upper Arm.” Exhibit
1 at 2; Exhibit 10 at 5. Below Petitioner’s signature on the consent form is the signature
of the vaccine administrator, along with handwritten information regarding the vaccine’s
lot number and expiration date. Exhibit 10 at 6. For site, there is a choice between “RA”
or “LA,” with “LA” manually circled. Id.
According to the medical records, Petitioner first visited Dr. Mayer, his current
PCP, to establish care on September 15, 2016. Exhibit 11 at 45-46.4 At this visit, Petitioner
3
Medical records from treatment provided by Dr. Bell in 2014-15 are contained in Exhibit 7. However, the
record from this January 28, 2013 visit was filed in the medical records from Michael Vaughan, M.D. at
MedHelp - Action Corporation. Exhibit 8 at 1-10. This exhibit also contains a copy of labs and a November
9, 2015 visit to Dr. Bell which also does appear in Exhibit 7 (id. at 11-14) and copies of medical records
from Petitioner’s cardiologist, Gregory L. Champoin, M.D. at Gastroenterology Associates, N.A.P.C. (id. at
17-31).
4
As noted on his exhibit list, Petitioner originally filed Dr. Mayer’s medical records as Exhibits 2 and 4. Initial
Exhibit List, filed Apr. 3, 2019, ECF No. 1-2. Inexplicably, the medical records from some visits to Dr. Mayer
were filed, not in these exhibits, but in the medical records from Petitioner’s orthopedist. E.g., Exhibit 3 at
3
informed Dr. Mayer that he had a test done in Birmingham which showed he has an
enlarged aorta and needed a referral to a cardiologist. Id. at 45. He also reported that he
had a cough “that comes and goes” since a 1992 trip to Mexico, causing him to “eat[] a
lot of cough drops” and sometimes suffer from night sweats. Id. Included in the results of
the physical examination performed by Dr. Mayer, however, is a report of “no arm pain
on exertion.” Id. at 46. Dr. Mayer prescribed medication for Petitioner’s anxiety, GERD,
and high blood pressure (id. at 45) and provided Petitioner with the requested cardiology
referral (id. at 6).
There is nothing in the medical records from this September 15, 2016 visit to Dr.
Mayer suggesting that Petitioner was suffering right shoulder pain. Under “Reviewed
Medications”, it is noted that a prescription for a flu vaccine was filled on August 13, 2016,
but there is no indication of any issues involved with this vaccination, and the location of
the vaccination is not specified. Exhibit 11 at 45. Under “Reviewed Surgical History”, the
record lists a colonoscopy in 2013 and undated left shoulder orthopedic surgery. Id. at
46.
Petitioner saw Dr. Mayer again on September 23, 2016, complaining of head and
chest congestion and sinus drainage for approximately one week. Exhibit 11 at 44-45. Dr.
Mayer diagnosed Petitioner with acute bronchitis and a chronic cough, prescribed
medication to include an inhaler and nasal spray, and administered a DEPO-Medrol
injection in Petitioner’s left buttock. Id. Again, there is no indication of the right shoulder
pain, Petitioner claims he was experiencing.
On November 21, 2016, Petitioner visited Community Urgent Care of Madison,
complaining of a rash. Exhibit 12 at 7. He was diagnosed with contact dermatitis,
administered a Kenalog injection, and prescribed other medication to include a Medrol
dose pack. Id. at 7-8. A few weeks later, on December 2, 2016, he saw the cardiologist
to who Dr. Mayer had referred him, William C. Robbins, M.D. Exhibit 2 at 20-29.5 These
medical records also do not contain evidence that Petitioner suffered from right shoulder
pain.
The first medical record in which Petitioner complained of right shoulder pain post-
vaccination comes from a call he placed to Dr. Mayer on February 16, 2017, to request a
32-38. Because the most recently filed copy of Dr. Mayer’s medical records can be found in Exhibit 11,
whenever possible, I will cite to that exhibit.
5
It appears Petitioner did not request medical records from his cardiologist, Dr. Robbins at HH Heart Center.
Final Exhibit List, filed Apr. 28, 2020, ECF No. 20-1. However, medical records from HH Heart Center can
be found in the medical records from other providers. This record was contained in the medical records
from Dr. Mayer.
4
referral to an orthopedist. Exhibit 2 at 30. When seen by Dr. Mayer a few days later, on
February 27, 2017, Petitioner claimed that he had suffered from this pain since August
2016, but he did not mention the flu shot he received. Exhibit 11 at 43. Petitioner
described his pain as “along the right shoulder area” (id.), indicated he had “used lots of
ibuprofen” (id.), and requested a referral to an orthopedist (id. at 42). At this visit,
Petitioner also discussed his visit to the cardiologist, Dr. Robbins, and his anxiety,
requesting to try new medication. Id. Dr. Mayer diagnosed Petitioner with acute bursitis
and ordered x-rays which showed no calcification but a “possible spur on the distal end
of the clavicle.” Id. at 43; see also id. at 47 (x-ray results).
In April 2017, Petitioner returned to his previous PCP, Dr. Bell, “because of poor
medical care based on his insurance.” Exhibit 7 at 1. The medical record from that visit
indicates Petitioner’s “major problem seems to be that he his is not sleeping and has
anxiety.” Id. Dr. Belll prescribed the Klonopin requested by Petitioner but recommended
that he try Melatonin and seek care for his sleep apnea from Dr. Patrick O’Neal, a
physician with an office close to where Petitioner currently lives. Id. There is no mention
of right shoulder pain in the record from this visit. The very next month, however,
Petitioner called Dr. Mayer again regarding his right shoulder pain. Exhibit 2 at 30. He
reported that his pain had not improved and that he wanted the orthopedic referral
discussed in February. Id.
On May 30, 2017, Petitioner was seen by Eric Janssen, M.D. at SportsMED
Orthopaedic & Spine Center for right shoulder pain which “started last August after a flu
shot.” Exhibit 15 at 11.6 Petitioner stated at this time that he had previous surgery,
described as “open reconstruction for dislocations on his left shoulder possibly 30 years
ago.” Id. He added that he had been taking ibuprofen, tramadol, and Tylenol. Although
Petitioner claimed to “have received a corticosteroid injection a few months ago” which
provided no relief, there is no mention of this injection in the medical records filed in this
case. Id.
During his examination, Dr. Janssen observed tenderness on the most lateral
aspect of Petitioner’s shoulder, good range of motion with pain on the extremes, and
some weakness on external rotation and abduction. Exhibit 15 at 12. He prescribed
Toradol and an MRI to rule out a rotator cuff tear. Id. Performed in early June 2017, the
MRI showed a “[p]artial thickness undersurface tear of the supraspinatus, . . . [a] [p]artial
thickness undersurface tear of the infraspinatus, [t]endinosis of the intra-articular biceps
tendon, [and a] [s]mall amount of fluid in the subcoracoid bursa.” Id. at 13.
6
These medical records have been filed on several occasions. E.g. Exhibits 4, 6, 11. I will cite the most
recent version, filed on April 28, 2020. See Exhibit 15.
5
Petitioner saw Dr. Janssen again on June 5, 2017 to discuss the results of the
MRI. Exhibit 15 at 9. Dr, Janssen administered a cortisone injection and prescribed
physical therapy (“PT”) and medication to help Petitioner sleep. Id. at 10. It appears,
however, that Petitioner attended only one PT session (on July 17, 2017). Exhibit 15 at
16-19. After assessing Petitioner’s limitations, the physical therapist recommended
“skilled physical therapy in conjunction with a home exercise program” for approximately
six weeks. Id. at 17. When seen by Dr, Janssen on July 21, 2017, Petitioner reported that
“[t]herapy released him [because they] didn’t feel like they can do much more for him at
this time.” Id. at 7. Dr. Janssen administered another cortisone injection7 and instructed
Petitioner to continue with his home exercises. Id. at 8. He added that he had briefly
discussed surgery if needed in the future.
On October 3, 2017, Petitioner was formally discharged from PT for failure to
“complete [his] current plan of care.” Exhibit 15 at 22. It thereafter appears that he did not
receive further treatment until 2018, when he was seen by Dr. Mayer for prescription refills
and congestion on February 5, 2018. Exhibit 13 at 20. At that visit, Petitioner reported
having a cough for one to two months. Stating that he was “unable to do PT,” he requested
Tramadol and a different anxiety medication. Id. As he did when treating Petitioner for
congestion in September 2015, Dr. Mayer administered a Depo-Medrol injection, this time
in Petitioner’s right hip, and prescribed medication for Petitioner’s cough, right shoulder
pain, and anxiety. Id. at 23.
There is another lengthy gap in the records before Petitioner was seen again by
Dr. Mayer on December 18, 2018, for significant head and chest congestion and
coughing. Exhibit 15 at 17. He also requested a colonoscopy. Id. On November 13, 2019,
he complained of “burning and aching in both knees, also pain and numbness in [his] feet
and toes” for six months. Id. at 11. This is the most recent medical record filed by
Petitioner.
III. Applicable Legal Standards
Under Section 13(a)(1)(A) of the Act, a petitioner must demonstrate, by a
preponderance of the evidence, that all requirements for a petition set forth in section
11(c)(1) have been satisfied. A petitioner may prevail on her claim if the vaccinee for
whom she seeks compensation has “sustained, or endured the significant aggravation of
any illness, disability, injury, or condition” set forth in the Vaccine Injury Table (the Table).
Section 11(c)(1)(C)(i). The most recent version of the Table, which can be found at
42 C.F.R. § 100.3
, identifies the vaccines covered under the Program, the corresponding
injuries, and the time period in which the particular injuries must occur after vaccination.
7
Dr. Janssen described the injection as Petitioner’s third, noting that he had administered the second
injection and the first had been “done elsewhere.” Exhibit 15 at 8.
6
Section 14(a). If petitioner establishes that the vaccinee has suffered a “Table Injury,”
causation is presumed.
If, however, the vaccinee suffered an injury that either is not listed in the Table or
did not occur within the prescribed time frame, petitioner must prove that the administered
vaccine caused injury to receive Program compensation on behalf of the vaccinee.
Section 11(c)(1)(C)(ii) and (iii). In such circumstances, petitioner asserts a “non-Table or
[an] off-Table” claim and to prevail, petitioner must prove her claim by preponderant
evidence. Section 13(a)(1)(A). This standard is “one of . . . simple preponderance, or
‘more probable than not’ causation.” Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274
, 1279-80 (Fed. Cir. 2005) (referencing Hellebrand v. Sec’y of Health & Human
Servs.,
999 F.2d 1565
, 1572-73 (Fed. Cir. 1993). The Federal Circuit has held that to
establish an off-Table injury, petitioners must “prove . . . that the vaccine was not only a
but-for cause of the injury but also a substantial factor in bringing about the injury.”
Shyface v. Sec’y of Health & Human Servs.,
165 F.3d 1344
, 1351 (Fed. Cir 1999).
Id. at 1352
. The received vaccine, however, need not be the predominant cause of the injury.
Id. at 1351
.
The Circuit Court has indicated that petitioners “must show ‘a medical theory
causally connecting the vaccination and the injury’” to establish that the vaccine was a
substantial factor in bringing about the injury. Shyface,
165 F.3d at 1352-53
(quoting
Grant v. Sec’y of Health & Human Servs.,
956 F.2d 1144
, 1148 (Fed. Cir. 1992)). The
Circuit Court added that "[t]here must be a ‘logical sequence of cause and effect showing
that the vaccination was the reason for the injury.’”
Id.
The Federal Circuit subsequently
reiterated these requirements in its Althen decision. See
418 F.3d at 1278
. Althen
requires a petitioner
to show by preponderant evidence that the vaccination
brought about her injury by providing: (1) a medical theory
causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the
vaccination was the reason for the injury; and (3) a showing
of a proximate temporal relationship between vaccination and
injury.
Id.
All three prongs of Althen must be satisfied.
Id.
Finding a petitioner is entitled to compensation must not be “based on the claims
of a petitioner alone, unsubstantiated by medical records or by medical opinion.” Section
13(a)(1). Further, contemporaneous medical records are presumed to be accurate and
complete in their recording of all relevant information as to petitioner’s medical issues.
7
Cucuras v. Sec’y of Health & Human Servs., 993, F.2d 1525, 1528 (Fed. Cir. 1993).
Testimony offered after the events in questions is considered less reliable than
contemporaneous reports because the need for accurate explanation of symptoms is
more immediate. Reusser v. Sec’y of Health & Human Servs.,
28 Fed. Cl. 516
, 523
(1993).
“It must [also] be recognized that the absence of a reference to a condition or
circumstance is much less significant than a reference which negates the existence of the
condition or circumstance. Since medical records typically record only a fraction of all that
occurs, the fact that reference to an event is omitted from the medical records may not
be very significant.” Murphy v. Sec’y of Health & Human Servs.,
23 Cl. Ct. 726
, 733 (Fed.
Cl. 1991), aff'd,
968 F.2d 1226
(Fed. Cir. 1992). However, in balancing these
considerations, special masters in this Program have in most cases declined to credit
later testimony over contemporaneous records. See, e.g., Stevens v. Sec’y of Health &
Human Servs., No. 90–221V,
1990 WL 608693
, at *3 (Cl. Ct. Spec. Mstr. Dec. 21, 1990);
Vergara v. Sec’y of Health & Human Servs., No. 08–882V,
2014 WL 2795491
, at *4 (Fed.
Cl. Spec. Mstr. July 17, 2014) (“Special Masters frequently accord more weight to
contemporaneously-recorded medical symptoms than those recounted in later medical
histories, affidavits, or trial testimony.”); see also Cucuras, 993 F.2d at 1528 (noting that
“the Supreme Court counsels that oral testimony in conflict with contemporaneous
documentary evidence deserves little weight”)).
IV. Analysis
Since the initial status conference, Petitioner has filed only two additional
documents addressing the factual deficiencies of his claim. The first, additional
documentation (regarding vaccination) actually further undermines his contention that he
received the vaccine alleged as causal in his injured right arm. The second (an unsigned
statement from Petitioner’s wife) echoes Petitioner’s allegations regarding the site of
vaccination and onset of his pain but does not address evidence that Petitioner suffered
prior right shoulder pain. And given that this statement is unsigned, it has less evidentiary
value than it would if signed under penalty of perjury or if the signature was notarized.
In addition, although Petitioner filed updated medical records from several of
Petitioner’s treating physicians, none of these records provide any additional evidence
regarding the deficiencies in Petitioner’s case, first noted in June 2019. Petitioner has had
ample opportunity to produce the evidence needed to overcome these deficiencies and
has failed to do so.
8
While Petitioner’s assertions regarding the onset of his pain and lack of prior right
shoulder pain are required to establish that he suffered a Table SIRVA,8 they are not
needed to prove causation. Thus, his inability to meet the Table requirements of onset is
not per se fatal to the claim. However, Petitioner cannot prevail, Table or not, if he is
unable to establish that he received the vaccine alleged as causal in his injured right arm.
Because a discussion of the evidence in all areas is relevant to this issue and in order to
provide a comprehensive analysis of the merits of Petitioner’s case, I will discuss all three
allegations.
A. Prior Right Shoulder Pain
Petitioner admits that he suffered from a prior left shoulder injury, now resolved,
but maintains that he never experienced any right shoulder pain or injuries. Exhibit 9 at ¶
4; Petition at ¶ 3. He describes his left shoulder injury as a fall which required “an
operation to repair it.” Exhibit 9 at ¶ 4.
The medical records support Petitioner’s assertions regarding his prior left
shoulder pain, as they contain references to left shoulder surgery approximately 30 years
8
Pursuant to the Vaccine Injury Table, a SIRVA is compensable if it manifests within 48 hours of the
administration of an influenza vaccine.
42 C.F.R. § 100.3
(a)(XIV) (2017). The criteria establishing a
SIRVA under the accompanying Qualification and Aids to Interpretation are as follows:
Shoulder injury related to vaccine administration (SIRVA). SIRVA manifests as shoulder
pain and limited range of motion occurring after the administration of a vaccine intended
for intramuscular administration in the upper arm. These symptoms are thought to occur
as a result of unintended injection of vaccine antigen or trauma from the needle into and
around the underlying bursa of the shoulder resulting in an inflammatory reaction. SIRVA
is caused by an injury to the musculoskeletal structures of the shoulder (e.g. tendons,
ligaments, bursae, etc). SIRVA is not a neurological injury and abnormalities on
neurological examination or nerve conduction studies (NCS) and/or electromyographic
(EMG) studies would not support SIRVA as a diagnosis (even if the condition causing the
neurological abnormality is not known). A vaccine recipient shall be considered to have
suffered SIRVA if such recipient manifests all of the following:
(i) No history of pain, inflammation or dysfunction of the affected shoulder prior to
intramuscular vaccine administration that would explain the alleged signs, symptoms,
examination findings, and/or diagnostic studies occurring after vaccine injection;
(ii) Pain occurs within the specified time frame;
(iii) Pain and reduced range of motion are limited to the shoulder in which the intramuscular
vaccine was administered; and
(iv) No other condition or abnormality is present that would explain the patient’s symptoms
(e.g. NCS/EMG or clinical evidence of radiculopathy, brachial neuritis, mononeuropathies,
or any other neuropathy).
42 C.F.R. § 100.3
(c)(10).
9
earlier. However, they contradict his claim that he suffered no prior right shoulder pain.
There are entries in the medical records from 2013-14 which reference left knee and right
shoulder pain. By 2014, the pain in both areas was described as resolved. Later medical
records show Petitioner again suffered from knee pain in 2019, this time in both knees.
Despite being instructed, on multiple occasions, to address the references
regarding prior right shoulder pain, Petitioner has failed to do so. Obtaining additional
medical records describing any treatment received for this pain could have provided
important additional information. Even if unable to provide any medical records, at a
minimum, Petitioner could have filed an amended affidavit addressing these earlier
entries. Since Petitioner has not done so, I conclude the information contained in medical
records showing prior right shoulder pain is correct. This is a factor that limits Petitioner’s
ability to pursue a Table SIRVA claim.
B. Onset of Right Shoulder Pain after Vaccination
Petitioner asserts that he felt pain in his right shoulder immediately upon
vaccination. Exhibit 9 at ¶ 5. He describes it as “a sharp pain that has turned into a
debilitating, aching pain.”
Id.
Both Petitioner and his wife allege that Petitioner complained
of his pain on the day of vaccination. Id.; Exhibit 14 at 1. Additionally, Petitioner maintains
that he “told [his] primary physician Dr. Mayer, that [he] had pain in [his] right shoulder
during [his] yearly check up two weeks after the flu shot.” Exhibit 9 at ¶ 5; accord. Petition
at ¶ 4.
However, the medical record from Petitioner’s September 15, 2016 visit to Dr.
Mayer contains no mention of this complaint. Exhibit 11 at 45-46. The omission is
significant, for the record does provide ample details regarding Petitioner’s other medical
conditions, and reveals that Dr. Mayer performed a thorough physical exam.
Id. at 46
.
There also is no mention of right shoulder pain in the medical records from visits to Dr.
Mayer on September 23, 2016, to Community Urgent Care of Madison on November 21,
2016, and to the cardiologist on December 2, 2016.
The medical record further establishes that Petitioner did not complain of his right
shoulder pain until more than six months after vaccination, when he called Dr. Mayer on
February 16, 2017, seeking a referral to an orthopedist. Exhibit 2 at 30. When seen by
Dr. Mayer on February 27, 2017, Petitioner first reported that he had suffered right
shoulder pain since August 2016, but does not mention the flu vaccine he received on
August 13th. Exhibit 11 at 43. And Petitioner did not link his right shoulder pain to the flu
vaccine until May 30, 2017. At this appointment with Dr. Janssen, he reported only that
his pain “started last August after a flu shot.” Exhibit 15 at 11. He does not specify what
10
is meant by the term “after,” or the amount of time between vaccination and the onset of
his pain.
Generally, information contained in contemporaneously created medicals records
is considered trustworthy because it is provided close in time to the events in question for
the purpose of obtaining medical care. Cucuras, 993 F.2d at 1528. Thus, even when the
information in a record was provided to a treater by a claimant, it is still considered more
trustworthy than allegations made at the time a petition is filed, or thereafter. Here,
multiple medical records created within six months of vaccination do not contain any
reference to right shoulder pain, while describing in great detail other conditions and
symptoms. By contrast, the only medical records providing some support for Petitioner’s
current allegation regarding onset were created more than six months after vaccination,
but are not specific regarding onset. Petitioner did not even mention the flu shot alleged
as causal, or identify it as the source of his pain, until more than nine months after
vaccination.
These later-created medical records are not sufficient to overcome the lack of any
earlier mention of right shoulder pain immediately upon vaccination. Petitioner has failed
to provide preponderant evidence that the onset of the right shoulder pain he complained
of in 2017 occurred immediately upon vaccination, as he alleges. As a result, this is a
second issue preventing Petitioner from proceeding with a Table SIRVA claim.
C. Site of Vaccination
The site of vaccination is not identified in the Petition. In his affidavit, Petitioner
maintains that he, his wife, and his son all received flu vaccines in their right arms as they
were sitting in the Rite Aid Pharmacy waiting area. Exhibit 9 at ¶ 3. Regarding the vaccine
administrator, Petitioner states that “the female pharmacist was self absorbed and did not
seem to focused on what she was doing.” Id. Petitioner claims that “[w]hen [he] went back
to get the paperwork about [his] shot, the young woman working behind the counter is the
pharmacy changed the location to [his] left arm, but that . . . [t]he shot was given in [his]
right arm.” Id. at ¶ 2.
In her unsigned statement, Petitioner’s wife echoes these claims. Exhibit 14 at 1-
2. However, when discussing the alleged alteration to the vaccine record, it is clear that
she is relaying second-hand information provided to her by the Petitioner. Id. at 2. Neither
Petitioner nor his wife indicates the date when this alternation occurred, only that it was
when Petitioner returned to Rite Aid to obtain his paperwork. Id.; Exhibit 9 at ¶ 2.
The vaccine record initially filed establishes that the flu vaccine alleged as causal
was administered in Petitioner’s upper left arm. Exhibit 1 at 2. This entry, which most
11
likely was created within the computerized records maintained at the Rite Aid Pharmacy,
appears as follows:
Petitioner later obtained and filed a more complete vaccine record which included
the consent form he signed when the vaccination was administered. Exhibit 10. Beneath
Petitioner’s signature are additional details regarding the administered vaccine, including
lot number, expiration date, the administrator’s signature and license number, and further
information regarding the site of vaccination. Id. at 6. All details are written on the form
presumably by the vaccine administrator. The notation regarding site of vaccination is
comprised of typed options for “RA” or “LA” with the “LA” choice manually circled as
follows:
Given that the vaccine administrator was required to manually circle the notation on the
consent form, this entry provides substantial evidence corroborating the conclusion that
the vaccine was administered in Petitioner’s left arm.
I previously have determined that a petitioner provided sufficient evidence to rebut
the site of administration listed in her vaccine record. Rodgers v. Sec’y of Health & Human
Servs., No. 18-0559V,
2020 WL 1870268
(Fed. Cl. Spec. Mstr. Mar. 11, 2020); Gallo v.
Sec’y of Health & Human Servs., No. 18-1298V,
2019 WL 7496617
(Fed. Cl. Spec. Mstr.
Dec. 5, 2019). However, these cases involved consistent and multiple reports of pain
attributed to the vaccination alleged as being administered in the injured shoulder, along
with efforts to obtain treatment far closer in time to vaccination. Rodgers,
2020 WL 1870268
, at *3-4; Gallo,
2019 WL 7496617
, at *3-4. In Gallo, for example, the first report
of pain occurred the day after vaccination.
2019 WL 7496617
, at *3. In Rodgers, the
petitioner complained of shoulder pain attributed to the vaccination she received on four
occasions during the month following vaccination.
2020 WL 1870268
, at *3. Furthermore,
as noted in Rodgers, these cases involved computerized vaccine records which requires
little thought or effort on the part of the vaccine administrator when identifying the site of
vaccination.
2020 WL 1870268
, at *5.
According to the medical records filed in this case, Petitioner did not complain of
right shoulder pain until more than six months after vaccination and did not attribute his
right shoulder pain to the vaccine he received on August 13, 2016 until an additional three
12
months thereafter. During the six months following vaccination, Petitioner sought medical
care on four occasions, but the medical records from these visits contain no mention of
right shoulder pain or any issues related to the August 13, 2016 vaccination. Additionally,
the medical records show that Petitioner suffered from right shoulder and left knee pain
several years prior to vaccination, and Petitioner has not addressed this prior right
shoulder pain.
Information provided in contemporaneously created medical records are afforded
greater weight because memories of specific events tend to fade over time. In this case,
the medical records created closer in time to the vaccination directly contradict the
information Petitioner provided more than six and nine months after vaccination. Thus,
they diminish the value of these later claims. The later-provided histories and later
allegations of Petitioner and his wife are not sufficient to overcome the clear evidence
provided in the vaccine record.
Reviewing the entire record in this case, I find that Petitioner has not provided
preponderant evidence to establish that he received the flu vaccine administered on
August 13, 2018 in his right, rather than left arm. This point alone is enough to support
dismissal of the claim regardless of its framing as Table or not.
V. Conclusion
To date, and despite ample opportunity, Petitioner has failed to file evidence to
address numerous deficiencies noted in his case. Most problematic, he has failed to
provide preponderant evidence showing that he received the flu vaccine alleged as causal
in his injured right arm, rather than his left deltoid as indicated in the vaccine record.
Petitioner was informed that failure to file the required medical records and other
evidence would be treated as either a failure to prosecute this claim or as an inability to
provide supporting documentation for this claim. Accordingly, this case is DISMISSED for
failure to prosecute. The clerk shall enter judgment accordingly.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
13 |
4,638,847 | 2020-12-02 18:02:03.393886+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv0202-56-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-202V
UNPUBLISHED
MILAN HARPER, Chief Special Master Corcoran
Petitioner, Filed: October 28, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Findings of Fact; Statutory Six Month
HUMAN SERVICES, Requirement; Tetanus Diphtheria
acellular Pertussis (Tdap) Vaccine;
Respondent. Shoulder Injury Related to Vaccine
Administration (SIRVA)
Michael Patrick Milmoe, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
petitioner.
Mark Kim Hellie, U.S. Department of Justice, Washington, DC, for respondent.
FINDINGS OF FACT 1
On February 8, 2018, Milan Harper filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a Shoulder Injury Related to Vaccine
Administration (“SIRVA”) as a result of her December 29, 2016 Tetanus Diphtheria
acellular Pertussis (“Tdap”) vaccination. Petitioner alleges a Table case for SIRVA.
1
Because this unpublished fact ruling contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the fact ruling will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
For the reasons discussed below, I find that Petitioner suffered the residual effects
of her alleged vaccine-related injury for more than six months after vaccination, as
required by Section 11(c)(1)(D)(i) of the Vaccine Act.
I. Relevant Procedural History
On March 31, 2019, Respondent filed a Status Report indicating that he had
completed review of the evidence filed in this case and wished to engage in settlement
discussions. ECF No. 25. By October 8, 2019, however, the parties had determined that
further settlement discussions would not be fruitful, and proposed instead that
Respondent file a Rule 4 (c) Report within 60 days providing his position in this case. ECF
No. 35.
On December 9, 2019, Respondent filed his Rule 4(c) Report arguing that
Petitioner’s case should be dismissed for failure to satisfy the “threshold severity
requirement” that Petitioner suffered the residual effects of her alleged vaccine-related
injury for more than six months after vaccination. ECF No. 36. On January 6, 2020, I
convened a Rule 5 Status Conference at the request of the parties. ECF No. 37. During
the conference, I proposed a preliminary finding that Petitioner would likely be able to
establish entitlement to compensation, through satisfaction of the Table requirements for
a SIRVA case.
42 C.F.R. § 100.3
(c)(10) (2017). Additionally, I made a second preliminary
finding that Petitioner has suffered the sequela of her injury for more than six months.
Id.
Thereafter, Respondent indicated he no longer intended to defend this case and
proposed filing an amended Rule 4(c) Report within 30 days the filing of Petitioner’s
outstanding medical records. ECF No. 38. However, after additional consideration,
Respondent requested I issue formal findings of fact and conclusion of law regarding the
severity issue, after which Respondent would file his supplemental Rule 4(c) Report. ECF
No. 42. A status conference was convened on April 27, 2020. It was agreed that I would
issue formal findings of fact and conclusions of law in regard to the severity requirement,
and that Respondent would file his supplemental Rule 4 Report within 14 days thereafter.
ECF No. 43. Subsequently, Petitioner filed a supplemental affidavit, additional
documentation, and updated medical records. Exs. 17-21. On July 16, 2020, Petitioner
filed a Status Report indicating that the record is complete and requesting I rule on the
severity requirement issue. ECF No. 49.
2
II. Issue
Whether Petitioner suffered the residual effects of her alleged vaccine-related injury
for more than six months after vaccination, as required by Section 11(c)(1)(D)(i) of the
Vaccine Act.
III. Authority
The purpose of the Vaccine Act is to award “vaccine-injured persons quickly,
easily, and with certainty and generosity.” Weddel v. Sec’y of Health & Human Servs.,
100 F.3d 929
, 932 (Fed. Cir. 1996) (quoting H.R. Rep. No. 99-908, at 3 (1986)). The Act
was meant to remedy the problem that “for the relatively few who are injured by vaccines
– through no fault of their own – the opportunities for redress and restitution [were] limited,
time consuming, expensive, and often unanswered.” Cloer v. Sec’y of Health & Human
Servs.,
654 F.3d 1322
, 1325 (Fed. Cir. 2011) (en banc) (quoting H.R. Rep. No. 99-908,
at 6 (1986)). As a result, the program places some emphasis on speed and efficiency,
especially in close cases.
The Vaccine Act requires that a Petitioner demonstrate that “residual effects or
complications” of a vaccine related injury continued for more than six months. Section
11(c)(1)(D)(i). A Petitioner cannot establish the length or ongoing nature of an injury
merely through self-assertion unsubstantiated by medical records or medical opinion.
Section 13(a)(1). In particular, a petitioner must prove, by a preponderance of the
evidence, the matters required in the petition by Section 11(c)(1). A special master must
consider, but is not bound by, any diagnosis, conclusion, judgment, test result, report, or
summary concerning the nature, causation, and aggravation of petitioner’s injury or illness
that is contained in a medical record. Section 13(b)(1). “Medical records, in general,
warrant consideration as trustworthy evidence. The records contain information supplied
to or by health professionals to facilitate diagnosis and treatment of medical conditions.
With proper treatment hanging in the balance, accuracy has an extra premium. These
records are also generally contemporaneous to the medical events.” Cucuras v. Sec’y of
Health & Human Servs.,
993 F.2d 1525
, 1528 (Fed. Cir. 1993).
Accordingly, where medical records are clear, consistent, and complete, they
should be afforded substantial weight. Lowrie v. Sec’y of Health & Human Servs., No. 03-
1585V,
2005 WL 6117475
, at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005). However, this rule
does not always apply. In Lowrie, the special master wrote that “written records which
are, themselves, inconsistent, should be accorded less deference than those which are
internally consistent.” Lowrie,
2005 WL 6117475
, at *19 (quoting Murphy v. Sec’y of
3
Health & Human Servs., 23 Cl.Ct. 726, 733 (1991), aff'd per curiam,
968 F.2d 1226
(Fed.Cir.1992)).
The United States Court of Federal Claims has recognized that “medical records
may be incomplete or inaccurate.” Camery v. Sec’y of Health & Human Servs.,
42 Fed. Cl. 381
, 391 (1998). The Court later outlined four possible explanations for
inconsistencies between contemporaneously created medical records and later
testimony: (1) a person’s failure to recount to the medical professional everything that
happened during the relevant time period; (2) the medical professional’s failure to
document everything reported to her or him; (3) a person’s faulty recollection of the events
when presenting testimony; or (4) a person’s purposeful recounting of symptoms that did
not exist. La Londe v. Sec’y of Health & Human Servs.,
110 Fed. Cl. 184
, 203-04 (2013),
aff’d,
746 F.3d 1334
(Fed. Cir. 2014).
The Court has also said that medical records may be outweighed by testimony that
is given later in time that is “consistent, clear, cogent, and compelling.” Camery, 42 Fed.
Cl. at 391 (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808,
1998 WL 408611
, at *5 (Fed. Cl. Spec. Mstr. June 30, 1998). The credibility of the individual offering
such testimony must also be determined. Andreu v. Sec’y of Health & Human Servs.,
569 F.3d 1367
, 1379 (Fed. Cir. 2009); Bradley v. Sec’y of Health & Human Servs.,
991 F.2d 1570
, 1575 (Fed. Cir. 1993).
The special master is obligated to fully consider and compare the medical records,
testimony, and all other “relevant and reliable evidence contained in the record.” La
Londe, 110 Fed. Cl. at 204 (citing § 12(d)(3); Vaccine Rule 8); see also Burns v. Sec’y of
Health & Human Servs.,
3 F.3d 415
, 417 (Fed. Cir. 1993) (holding that it is within the
special master’s discretion to determine whether to afford greater weight to medical
records or to other evidence, such as oral testimony surrounding the events in question
that was given at a later date, provided that such determination is rational).
IV. Finding of Fact
I make the following findings after a complete review of the record to include all
medical records, affidavits, Respondent’s Rule 4 report, and additional evidence filed.
Specifically, I base the findings on the following evidence discussed below.
• Ms. Harper received at Tdap vaccination in her left deltoid on December 29,
2016. She was 29 weeks pregnant. Ex. 10 at 1;
4
• On January 8, 2017, Petitioner went to the emergency room reporting left
shoulder pain “that began 10 days ago after receiving the Tdap vaccine.”
Ex. 2 at 68. Petitioner was found to have limited range of motion of the left
upper arm and shoulder, and was admitted to the hospital. Ex. 2 at 44-45;
• Kenneth Ham, MD conducted an orthopedic evaluation on January 9, 2017
and assessed Petitioner with “reactive rotator cuff impingement, bursitis.”
Pet. Ex. 5 at 3-4. It was noted that Petitioner experienced “pain in the left
shoulder following a pertussis vaccination to her left shoulder region. The
patient noted aching pain that increased and became intense from which
she had trouble lifting.” Ex. 5 at 3. Petitioner was discharged on January
11, 2017. Ex. 2 at 77-78;
• Petitioner was evaluated on January 17, 2017 at her obstetrician’s office for
left shoulder pain. Her arm was noted to be in a sling. Petitioner reported
she was advised at the hospital she had bursitis and a rotator cuff
impingement due to the Tdap vaccination being administered “too high.” Ex.
6 at 93. Petitioner indicated that surgery was recommended, but that she
postponed shoulder surgery until after delivery of the baby. Ex. 6 at 93;
• On February 11, 2017, Petitioner delivered her baby via cesarean section.
Ex. 4 at 134-135;
• On April 19, 2017, Petitioner was seen by her primary provider for a sore
throat and received a strep test. Ex. 11 at 24-26. No report of shoulder pain
was detailed in this record;
• On June 2, 2017, Petitioner was admitted to hospital for acute back pain
and a urinary tract infection. Ex. 2 at 389. Petitioner was discharged on June
4, 2017 with diagnosis of acute back pain and urinary tract infection.
Id.
No
report of shoulder pain was detailed in this record;
• On September 7, 2017, Petitioner was seen by her primary care provider
for left shoulder pain “for the last 20-30 days.” Ex. 3 at 3. A history was
provided detailing Petitioner’s receipt of a Tdap vaccine high in her shoulder
when she was six months pregnant, followed by admittance to the
emergency room, and recommended surgery and physical therapy after
delivery.
Id.
Petitioner recounted that she had been on medication as a
result of her cesarean section and that her shoulder pain had dissipated but
was now continuous.
Id.
On exam, Petitioner’s active range of motion was
5
limited in her left shoulder and her strength was less than her right. Ex. 3 at
5. Petitioner was referred to an orthopedist. Id.;
• On October 4, 2017, Petitioner was evaluated by orthopedist, Ram Aribindi,
MD “complaints of left shoulder pain since December 2016. She had noted
this pain after a Tdap injection.” Ex. 13 at 1. Petitioner was assessed with
“left shoulder pain with limited active motion of the shoulder with tendinitis
of the shoulder.”
Id.
Petitioner received a steroid injection. Id. at 2;
• On March 13, 2018, Petitioner was seen by her primary care provider for
her left shoulder pain. Her history of shoulder pain and related
hospitalization when she was pregnant was provided, as well as the
recommendation she undergo surgery and physical therapy post-delivery.
Petitioner indicated it was not convenient to have surgery now with a one
year old. Ex. 11 at 6. On exam Petitioner exhibited severely decreased
passive range of motion of left shoulder. Ex. 11 at 8. An MRI and physical
therapy were recommended. Id. at 8-9.
In this case, it is undisputed that Petitioner received a Tdap vaccination on
December 29, 2016 in her left deltoid. Respondent also has not raised any dispute
concerning the onset of Petitioner’s left shoulder pain, and there is preponderant evidence
that the onset of her pain was immediate after receipt of her Tdap vaccination. Ex. 2 at
44-45. Further, I find, based on the above medical records that Petitioner suffered the
sequela of her shoulder injury for more than six months after her December 29, 2016
Tdap vaccination.
Although, Petitioner’s September 7, 2017 visit to her primary care provider
indicates left shoulder pain “for the last 20-30 days” the record for that visit also provides
a “History of “Present Illness” that describes Petitioner’s receipt of a Tdap vaccination
when she was six months pregnant and emergency room visit due to her pain in her
shoulder followed by a diagnosis of shoulder bursitis and discharge. Ex. 3 at 3. The record
of that visit further details Petitioner’s receipt of medication after her C-section and
corresponding reduction in pain. Id.
This record is consistent with Petitioner’s affidavits. Petitioner avers in her
affidavits that after her C-section surgery she received pain medication, Norco, which
helped her shoulder pain. Petitioner further explained that while she continued to
experience pain between mid-January and September 2017, and that she wore an arm
sling much of the time after her Norco was exhausted. During the summer after her baby
was delivered, her mother and two friends were able to provide help with her home and
her son. However, in September once she no longer had assistance and as her son began
6
to move about more, Petitioner sought further medical care. Exs. 7, 15, 17. Thus, although
some intervening records do not record continuous, post-vaccination pain, the records do
support the conclusion (bulwarked in this case by Petitioner’s sworn statements) that she
continued to experience pain throughout, if intermittently.
Accordingly, I find that preponderant evidence establishes that Petitioner
suffered the sequela of her alleged vaccine injury for more than six months after
her December 29, 2016 Tdap vaccination.
Respondent shall file his Supplemental Rule 4 Report by no later than
November 11, 2020.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 |
4,638,848 | 2020-12-02 18:02:04.28816+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0075-44-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0075V
(not to be published)
GAILA GREENBERG,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 30, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Jessica Anne Olins, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.
Lisa Ann Watts, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 15, 2019, Galia Greenberg filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the
“Vaccine Act”). Petitioner alleges that she suffered a left Shoulder Injury Related to
Vaccine Administration as a result of an influenza vaccination received on October 25,
2016. (Petition at 2). On October 15, 2020, a decision was issued awarding compensation
to Petitioner based on the Respondent’s proffer. (ECF No. 32).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated October 20,
2020, (ECF No. 36), requesting a total award of $19,716.61 (representing $19,075.80 in
fees and $639.81 in costs). In accordance with General Order #9, Petitioner filed a signed
statement indicating that she incurred no out-of-pocket expenses. (ECF No. 36-3).
Respondent reacted to the motion on October 27, 2020 indicating that he is satisfied that
the statutory requirements for an award of attorney’s fees and costs are met in this case
and defers to the Court’s discretion to determine the amount to be awarded. (ECF No.
37). On October 27, 2020, Petitioner filed a reply requesting a decision awarding the fees
and costs requested in full. (ECF No. 38).
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $19,716.61 (representing $19,075.80 in fees and $639.81 in costs) as a
lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
Petitioner requests payment be forwarded to Maglio Christopher & Toale, PA, 1605
Main Street, Suite 710, Sarasota, Florida, 34236. In the absence of a timely-filed motion
for review (see Appendix B to the Rules of the Court), the Clerk shall enter judgment in
accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2 |
4,638,849 | 2020-12-02 18:02:05.285322+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv0411-41-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-0411V
UNPUBLISHED
AMBER ETHERIDGE, Chief Special Master Corcoran
Petitioner, Filed: October 30, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Dismissal; Untimely Filed; Onset;
HUMAN SERVICES, Table Injury; Lookback Provision;
Influenza (Flu) Vaccine; Guillain-
Respondent. Barré Syndrome (GBS)
Milton Clay Ragsdale, IV, Ragsdale LLC, Birmingham, AL, for petitioner.
Darryl R. Wishard, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On March 19, 2018, Amber Etheridge filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). “Petitioner alleges that she incurred Guillain-Barré syndrome due to the
influenza (“flu”) vaccine she received on September 24, 2012, casting her claim as a
Table injury under 42 U.S.C. §300aa-14, as amended effective March 21, 2017.” Petition
at ¶ 7. The case was assigned to the Special Processing Unit of the Office of Special
Masters.
On March 15, 2019, Respondent filed his Rule 4(c) Report, arguing that Petitioner
has failed to establish that her petition was timely filed, or that she suffered the residual
effects of her injury for more than six months. ECF No. 23; see Section 16 (requirements
1
Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
for a timely filed petition); Section 16(c)(1)(D)(i) (statutory six-month requirement).
Accompanying the Rule 4(c) Report was a motion seeking the claim’s dismissal. ECF No.
24. Now, having considered both the motion and Petitioner’s response as well as the
medical records filed in this case, I find that dismissal is appropriate. As discussed in
more detail below, because the claim does not meet the Table requirements for a flu
vaccine/GBS claim, it is untimely under the Act’s “lookback provision” – and even if it had
been timely filed, dismissal would still be appropriate because Petitioner cannot satisfy
the six-month severity requirement applicable to any Vaccine Act claim.
I. Procedural History
After initiation of this case, Petitioner filed documentation showing she received a
flu vaccine on September 24, 2012, as alleged. Exhibit 1, filed Mar. 15, 2019, ECF No. 1-
2. By April 30, 2018, she had filed the medical records she believed were required to
support her claim. Exhibits 2-10, ECF No. 7; Exhibit 11, ECF No. 9; Statement of
Completion, ECF No. 10. The initial status conference was scheduled for May 21, 2018.
During the call, the parties discussed whether Petitioner’s illness qualified as GBS;
whether onset of Petitioner’s illness occurred two days after vaccination, and thus too
soon for a Table GBS; and whether Petitioner had suffered the residual effects of her
illness for more than six months. See Scheduling Order, issued June 7, 2018, ECF No.
11. Petitioner was ordered to file any additional medical records, affidavits, or other
evidence to address these issues. Id. at 2.
Over the subsequent seven-month period, Petitioner filed additional medical
records and affidavits. Exhibits 12-16, filed Sept. 5, 2018, ECF No. 13; Exhibits 17-18,
filed Oct. 16, 2018, ECF No. 16; Exhibits 19-20, filed Jan. 15, 2019, ECF No. 20;
Statement of Completion, filed Jan. 17, 2019, ECF No. 21. On March 15, 2019,
Respondent filed his Rule 4(c) Report, arguing that Petitioner had failed to provide
sufficient evidence to address the deficiencies noted during the initial status conference,
and a motion, requesting that Petitioner’s case be dismissed. ECF Nos. 23-24. In her
response, filed on April 12, 2019, Petitioner argued that Respondent’s motion was
premature and requested that the motion be denied. ECF No. 26.
On August 22, 2019, former Chief Special Master Dorsey3 deferred ruling on
Respondent’s motion to dismiss. Order, issued Aug. 22, 2019, ECF No. 28. She ordered
Petitioner to file an expert report addressing the issues raised by Respondent. Id. at 2.
3
This case was initially assigned to former Chief Special Master Dorsey. On October 1, 2019, I was
appointed Chief Special Master, and the majority of SPU cases, including this one, were reassigned to me.
2
During the subsequent eight-month period, Petitioner attempted to procure an
expert report to establish that her illness met the definition for Table GBS, and that the
effects of her illness had lasted for more than six months. Petitioner first concentrated her
efforts on obtaining a report from one of her treating physicians. E.g., First Motion for
Extension of Time, filed Oct. 23, 2019, at ¶ 1, ECF No. 29. When unsuccessful, Petitioner
attempted to obtain a report from “a specially retained expert.” Third Motion for Extension
of Time, filed Feb. 21, 2020, at ¶ 1, ECF No. 31. By April 21, 2020, Petitioner indicated
her efforts to obtain an expert report had proved unsuccessful. Status Report at ¶ 1, ECF
No. 32. Given the constraints imposed by the COVID-19 pandemic, she requested
additional time to confer with counsel. Id. at ¶ 2. In May and June 2020, Petitioner filed
status reports indicating she still was pursing a report from one of her treating physicians,
Dr. Ennis. ECF Nos. 33-34.
A call was scheduled for July 28, 2020 to discuss Petitioner’s progress. At that
time, Petitioner informed me that she would not be filing an expert report or report of a
treating physician, but still wished to continue with her claim. Order, issued July 31, 2020,
ECF No. 35. In response, it was noted that I had previously determined that the eight-
year lookback period does not apply to non-Table flu-GBS claims,4 but Petitioner stated
that she believed her Table claim did in fact meet the requirements for the claim. Order
at 2. The parties were informed that I intended to rule on the issues raised by Respondent
in his Rule 4(c) Report and motion to dismiss. Deadlines were set for any additional
briefing from the parties.
Petitioner filed her Supplement Brief in Response and Opposition to Respondent’s
Rule 4(c) Report and Motion to Dismiss (“Opp.”) on September 17, 2020. ECF No. 36.
Respondent filed his brief, titled as a Motion for Ruling on the Record, on September 23,
2020. ECF No. 38 (“Mot.”). Because I already had informed the parties that I intended to
rule on the record as it currently stands, the additional deadlines set by Respondent’s
motion were terminated.
II. Ruling on the Record vs Summary Judgment
A threshold issue raised by the parties’ briefs is whether it is appropriate for me to
resolve this matter summarily – and if so, what legal standard should apply.
In her brief, Petitioner reiterates the arguments she made in her initial response
filed in April 2019. Focusing only on the requirements for summary judgment, Petitioner
“contends that her evidence surpasses the low threshold of creating genuine issues of
material fact which must be judged on the merits, and requests that the Court set this
4
See Randolph v. Sec’y of Health & Human Servs., No. 18-1231V,
2020 WL 542735
(Fed. Cl. Spec.
Mstr. Jan. 2, 2020).
3
matter for further proceedings.” Opp. at 4. She maintains that her case “is not appropriate
for dismissal because the Respondent failed to establish the absence of genuine issues
of material fact.”
Id.
In contrast, Respondent argues that a ruling on the existing record is
appropriate as “[P]etitioner has admittedly filed all documentation and evidence available
in support of her claim.” Res. Brief at 4. He maintains that “[i]n its current state, the record
is completely insufficient to meet [P]etitioner’s burden of proof.”
Id.
In Section 12(d) of the Vaccine Act, Congress provided guidance regarding the
type of “less-adversarial, expeditious, and informal” proceeding envisioned for the
Vaccine Program. Section 12(d)(2)(A). This guidance was incorporated in the Vaccine
Rules. In Vaccine Rule 3, special masters are instructed “to make the proceedings
expeditious, flexible, and less adversarial, while at the same time affording each party a
full and fair opportunity to present its case and creating a record sufficient to allow review
of the special master’s decision.” Vaccine Rule 3(b)(2). And as explicitly set forth in
Vaccine Rule 8, “[t]he special master may decide a case on the basis of written
submissions without conducting an evidentiary hearing. Submissions may include a
motion for summary judgment, in which event the procedures set forth in RCFC 56 will
apply.” Vaccine Rule 8(d) (emphasis added). Thus, the fact that special masters may
make rulings on the record is a product of the Vaccine Act itself, which envisions efforts
to streamline proceedings in order to reach faster determinations in a less adversarial
manner (especially where the issues that will govern the case’s resolution are narrow or
primarily legal in nature).
As the Federal Circuit explained when recently affirming my decision to rule on the
written record in a different case, a special master’s ability to decide a case based upon
written submissions without a hearing is not limited to the context of summary judgment
as applied by the federal courts and civil procedure rules. Kreizenbeck v. Sec’y of Health
& Human Servs.,
945 F.3d 1362
, 1366 (Fed. Cir. 2020). Rather, “Rule 8(d) contemplates
that special masters can decide cases on written submissions other than motions for
summary judgment.”
Id.
(emphasis in original). As explained in Kreizenbeck, special
masters may rule on the record after affording the parties “a full and fair opportunity to
present its case.”
Id.
(citing Vaccine Rule 3(b)(2)). The “special masters must determine
that the record is comprehensive and fully developed before ruling on the record.”
Kreizenbeck, 945 F.3d at 1366.
In light of the above, Petitioner is incorrect in maintaining that the summary
judgment standards govern the resolution of this matter. Accepting this argument would
limit the special masters’ authority to decide cases based upon written submissions. But
in Kreizenbeck, the Federal Circuit clearly stated that the special masters’ authority is
broader, encompassing the ability to rule on the written without hearing, under standards
distinguishable from those applicable to summary judgment. Rather, I may resolve this
4
case as it stands and on the existing record. The key issue is whether Petitioner has had
a full and fair opportunity to offer evidence in support of her claim.
Although a determination was made earlier in the course of the matter to refrain
from acting on Respondent’s motion – in order to allow Petitioner the chance to develop
the record - those circumstances have changed. As presented in April 2019, Petitioner’s
arguments were enough to warrant deferring a ruling on Respondent’s motion to dismiss,
since she had not yet had the opportunity to fully address the issues raised by
Respondent. However, since that time, Petitioner has been afforded more than a year to
obtain an expert report but has failed to do so. She also could have filed additional
information or evidence bearing on the claim.
Under the Act, a petitioner must demonstrate by preponderant evidence the
requirements for a petition as set forth in section 11(c)(1). Section 13(a)(1)(A). It cannot
be said that resolution of this matter now, on the basis of the existing record, is depriving
Petitioner of the opportunity to prove a matter, since she has been given ample time to
do so. I therefore find that resolution of the pending motion, based on the authority vested
in me as recognized by the Federal Circuit, is appropriate at this time – and I need not be
guided by summary judgment fact-finding standards in so doing.
III. Analysis of Substantive Issues Raised by Respondent’s Motion
A. Adequacy of Table Claim
Pursuant to the Vaccine Injury Table, GBS is compensable if it manifests within 3-
42 days after the administration of a flu vaccine.
42 C.F.R. § 100.3
(a)(XIV)(D) (2017).
Additional criteria can be found in the Qualification and Aids to Interpretation (“QAI”).
42 C.F.R. § 100.3
(c)(15). Respondent argues that Petitioner’s case fails on several areas.
First, Respondent maintains that the onset of Petitioner’s symptoms does not fit
the Table period. Petitioner received the flu vaccine on September 24, 2012, while
hospitalized for esophageal surgery performed five days earlier (September 19, 2012).
Exhibit 5 at 39-40. The exact time of administration is not clearly noted in the vaccine
record, but it appears it may have been administered at approximately 10:01 am. Exhibit
1 at 9. Under the Table’s timeframe, onset would have to be no earlier than the morning
of September 27th.
On Saturday, September 29, 2012, Petitioner visited the emergency room,
complaining of lower extremity weakness and numbness. Exhibit 5 at 10. She initially
reported to treaters at this time that she had been experiencing these symptoms for three
days. Normally, this would place onset as occurring on September 26, 2012, or two days
5
after vaccination (and hence too short to meet the Table timeframe). However, Petitioner
also identifies onset as occurring on Thursday morning when she woke.
Id.
This would
place onset early on September 27, 2012 - close to but not quite three days after
vaccination. Later histories are less exact, but all place onset around approximately the
same time.
Given the above, the question of onset in this case remains a close call. Under
such circumstances, relevant and persuasive case law suggests deciding the issue in
Petitioner’s favor. Althen v. Sec’y of Health & Human Servs.,
418 F.3d 1274
, 1280 (Fed.
Cir. 2005). Were this the sole issue with the adequacy of the Table claim, I would likely
find this matter in Petitioner’s favor.
There is, however, a second and far more problematic issue: whether the illness
Petitioner suffered was GBS or some other condition. There is no clear GBS diagnosis in
the medical records filed by Petitioner, and her symptoms are often reported to be
atypical.5 In fact, on several instances, Petitioner’s treating physicians theorized that her
symptoms may be psychosomatic.6
When Petitioner first sought treatment on September 29, 2012, she visited her
primary care provider William L. Pridgen, M.D., before going to the hospital. Exhibit 4 at
23-24. She had seen Dr. Pridgen six days earlier on September 23, 2012, complaining of
nausea, vomiting, and the feeling of a tear when throwing up. Id. at 25. At that visit, Dr.
Pridgen indicated Petitioner was not taking her medicine and thus had likely experienced
a viral activation that needed to be suppressed with medication. Id.
When she returned to Dr. Pridgen’s office, complaining of weakness and
numbness in her lower extremities, Dr. Pridgen attributed her symptoms to the same viral
flare he had opined that she was experiencing, noting that according to Petitioner and her
family she had experienced “transient lower extremity paralysis . . . in the past . . . [when]
on suppression therapy, . . . certainly during non-treatment, which is the reason for the
suppression in the first place.” Exhibit 4 at 23. According to Dr. Pridgen, “that is exactly
5
For example, in the medical records from an emergency room consult on October 26, 2012, it is noted
that “[r]eview of her clinical course is somewhat atypical in that spinal fluid analysis was negative and the
patient had sensory involvement.” Exhibit 10 at 129.
6
In an October 3, 2012 note in the medical records from DCH Hospital, it is noted that some lower
performance “may be supratentorial.” Exhibit 5 at 31. Supratentorial means superior to the tentorium of the
cerebellum. DORLAND ’S ILLUSTRATED MEDICAL DICTIONARY (“DORLAND ’S”) at 1806. Thus, this entry appears
to be a complex way of saying in her head. A much clearer statement can be found in a DCH Hospital
medical records from October 31, 2012. The statement is as follows: “Neurology saw the patient. There
was some concern that some of the symptoms could be psychosomatic related.” Exhibit 10 at 117.
Psychosomatic means “pertaining to the mind-body relationship; having bodily symptoms of psychic,
emotional, or mental origin.” DORLAND’S at 1550.
6
what happened here.” Id. Petitioner had previously been diagnosed with Henoch-
Schonlein Purpura7 when 10 years old.
Later entries show other treating physicians similarly uncertain of a GBS diagnosis.
For example, in the medical records from an October 8, 2012 consultation, the treating
physician questioned whether the proper diagnosis was an inflammatory response such
as GBS vs. toxic neuropathy. Exhibit 5 at 36. Regarding a second bout of lower extremity
numbness suffered by Petitioner on October 26, 2012, there is a reference to a UTI
(urinary tract infection) and Petitioner acknowledges that she again was taking HSV
medication intermittently. Exhibit 10 at 118, 124.
The discussion in this section provides a few examples of the information
contained in the medical records casting significant doubt on whether Petitioner’s illness
satisfies the Table definition of GBS, or can even be properly characterized as GBS. But
a petitioner cannot prevail on a Table claim if she cannot satisfy the Table’s definition for
the injury. Here, the existing record preponderates against the conclusion that Petitioner
did in fact experience GBS. Moreover, Petitioner has been given ample opportunity to
supplement that record – here, with an expert report that could synthesize the record and
explain how GBS is the proper diagnosis despite a lack of treater record support.
Examining the whole record in this case, I find that Petitioner has not provided
preponderant evidence showing her illness meets the Table definition for GBS.
B. Untimeliness of Claim
In many cases, the fact that a claimant cannot meet a Table definition or
requirement does not constitute the end of the case, since the claimant might well be able
to establish a non-Table, causation-in-fact version of the claim not subject to those
requirements. Here, for example, Petitioner might be able to show that her injury
(whatever it is) is some kind of GBS-like neuropathy caused by the flu vaccine. (She
would, of course, then be obligated to meet the three elements of the test set forth in
Althen, 418 F.3d at1278).
But Petitioner’s ability to refashion her claim into a non-Table cause of action is not
possible under the circumstances, due to the late date the matter was filed. It is not
disputed that Petitioner received the flu vaccine on September 24, 2012. Accordingly, to
be timely filed under the Vaccine Act’s 36-month statute of limitations, Petitioner should
have filed her petition by no later than a date in September 2015 (based upon onset).
7
Henoch-Schonlein Purpura is a disorder causing inflammation and bleeding in the small blood vessels.
See https://www.webmd.com/skin-problems-and-treatments/henoch-schonlein-purpura-causes-
symptoms-treatment#1 (last visited on Oct. 27, 2020).
7
Section 16(a)(2). But this matter was initiated in March 2018 – approximately two and
one-half years later. It is thus facially untimely.
Petitioner argues the contrary, relying on the Act’s “lookback” provision (Section
16(b)). Opp. at 1. That provision is triggered by a Table revision, and allows petitioners to
file otherwise-untimely petitions within two years of the revision’s effective date, for
vaccine-related injuries suffered during the eight years prior to the revision. Section 16(b).
Thus, Petitioner maintains, because the Vaccine Table was revised in 20178 to include a
claim for GBS after receipt of the flu vaccine, the present claim (filed a year after the Table
change) is timely since it alleges a Table claim.
Petitioner’s reasoning is incorrect. I have previously determined that the “lookback”
provision of the Vaccine Act “does not save a non-Table version of a flu-GBS claim.”
Randolph v. Sec’y of Health & Human Servs., No. 18-1231V,
2020 WL 542735
, at *8
(Fed. Cl. Spec. Mstr. Jan. 2, 2020) (emphasis added). Rather, once it is determined that
any particular claim cannot satisfy the Table requirements, the lookback provision no
longer applies. My determination is in line with prior decisions from other special masters.
Gorski v. Sec’y of Health & Human Servs., No. 97-156V,
1997 WL 739497
, at *6 (Fed.
Cl. Spec. Mstr. Nov. 13, 1997).
Here, my conclusion that Petitioner cannot preponderantly meet the requirement
of a flu-GBS Table claim takes her out of the lookback’s safe harbor. Because Petitioner
filed her case well after the expiration of the Vaccine Act’s 36-month statute of limitation,
her petition is untimely filed, and thus must be dismissed.
C. Severity Requirement
In addition to the foregoing, dismissal is also warranted because Petitioner cannot
demonstrate that she suffered the residual effects of her illness for more than six months.
The last mention of lower extremity weakness and numbness can be found in the
medical records from treatment Petitioner received in late October 2012 for her second
bout of these symptoms. This was less than two months from onset. Thereafter, Petitioner
suffered from right hand parenthesis and weakness on May 23, 2013. Exhibit 10 at 58.
However, the medical record from that visit establishes that the treating physician clearly
opined that “[t]he patient’s examination is not consistent with Guillan barre [sic].”
Id. at 63
.
Petitioner visited the emergency room again on July 3, 2013, complaining of a migraine.
8
Effective for petitions filed beginning on March 21, 2017, GBS is an injury listed on the Table. See National
Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, Final Rule,
82 Fed. Reg. 6294
(Jan. 19, 2017); National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury
Table, Delay of Effective Date,
82 Fed. Reg. 11321
(Feb. 22, 2017) (delaying the effective date of the final
rule until March 21, 2017).
8
Id. at 20
. Again, there is nothing in this medical record to link these symptoms to the
illness Petitioner suffered in October 2012.
Id. at 20-44
. Thus, the last symptom that
arguably could be linked to GBS occurred in late October/early November 2012, less than
two months after vaccination.
This record is insufficient to satisfy the Vaccine Act’s six-month statutory
requirement for severity. Section 16(c)(1)(D)(i). Not only can she not demonstrate that
she ever received a formal GBS diagnosis, but she cannot show that the symptoms that
arguably reflected GBS close-in-time to vaccination persisted or produced other sequelae
that lasted over time. Here, expert interpretation of the record would have potentially been
helpful – but despite the opportunity to provide it, Petitioner failed to file any such report.
This thus stands as another, independent basis for the claim’s dismissal.
IV. Conclusion
To date, and despite ample opportunity, Petitioner has failed to file preponderant
evidence to establish her Table claim, rendering the case untimely. She also cannot meet
the severity requirement applicable to all Program claims. Accordingly, this case is
DISMISSED for failure to prosecute. The clerk shall enter judgment accordingly.9
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
9
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
9 |
4,638,850 | 2020-12-02 18:02:06.819911+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv1857-37-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1857V
UNPUBLISHED
ROLAND S. EINER, Chief Special Master Corcoran
Petitioner, Filed: October 29, 2020
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Guillain-Barre
Syndrome (GBS)
Respondent.
M. Jalie Meinecke, Meinecke & Sitz, Cody, WY, for petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
respondent.
DECISION ON JOINT STIPULATION1
On December 4, 2018, Roland Einer filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barre Syndrome (“GBS”) as a
result of an influenza vaccine received on November 1, 2016. Petition at 1; Stipulation,
filed at October 28, 2020, ¶¶ 2-4. Petitioner further alleges the vaccination was
administered in the United States, he suffered the residual effects of his injury for more
than six months, and there has been no prior award or settlement of a civil action for
damages on his behalf as a result of his condition. Petition at 1, 4; Stipulation at ¶¶ 3-5.
“Respondent denies that petitioner sustained a GBS Table injury, and denies that the
influenza vaccine caused petitioner to develop GBS or any other injury. ” Stipulation at
¶ 6.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Nevertheless, on October 28, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $60,000.00 in the form of a check payable to Petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2 |
4,638,851 | 2020-12-02 18:02:07.67945+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0344-30-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-344V
UNPUBLISHED
IVIE DOTSON Chief Special Master Corcoran
parent and guardian of A.D., a minor,
Filed: October 27, 2020
Petitioner,
v. Petitioner’s Motion for a Decision
Dismissing Her Petition; Varicella
SECRETARY OF HEALTH AND Vaccination; Insufficient Proof of
HUMAN SERVICES, Causation; Special Processing Unit
(SPU)
Respondent.
David Charles Richards, Christensen & Jensen, P.C., Salt Lake City, UT, for petitioner.
Althea Walker Davis, U.S. Department of Justice, Washington, DC, for respondent.
DECISION DISMISSING PETITION1
On March 5, 2019, Ivie Dotson, parent and guardian of A.D. (“Petitioner”), filed a
petition for compensation under the National Vaccine Injury Compensation Program, 42
U.S.C. §300aa-10, et seq.1 [the “Vaccine Act” or “Program”]. Petitioner alleges two
possible Table injuries stemming from a March 7, 2014 measles, mumps, rubella, and
varicella vaccination: either i) varicella vaccine-strain viral reactivation disease, or ii)
disseminated varicella vaccine-strain viral disease. Petition at 1-2.
On July 14, 2020, the parties held a telephonic status conference during which I
informed Petitioner’s counsel that I did not believe the current record included sufficient
evidence to establish either of the alleged theories. ECF No. 24. With respect to varicella
vaccine-strain viral reactivation disease, to show that an individual suffered a Table injury,
1
Because this unpublished order contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the order will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
1
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2006).
“[t]here must be laboratory confirmation that the vaccine-strain of the varicella virus is
present ….” See
42 C.F.R. § 100.3
(a) and (b)(12). However, Petitioner’s counsel
confirmed during the call that no laboratory testing occurred. With regard to the
disseminated varicella vaccine-strain viral disease, to establish a Table injury a petitioner
must show that the “varicella illness … involves the skin beyond the dermatome in which
the vaccine was given and/or disease caused by the vaccine-strain varicella in another
organ.” See
42 C.F.R. § 100.3
(a) and (b)(11). If strain determination was not done, the
onset of the illness in any organ must occur 7 to 42 days after vaccination. Again, during
the call, Petitioner’s counsel confirmed that no testing was conducted, and the record
indicates onset was within 24 hours.
An Order to Show Cause was issued, affording Petitioner 30 days to file additional
evidence indicating that A.D. suffered a Table Injury. ECF No. 24. On August 13, 2020,
Petitioner filed a status report stating that there is no additional evidence in support of this
claim. ECF No. 25. On September 1, 2020, a second Order to Show Cause was issued,
affording Petitioner until September 30, 2020, to show cause why this case should not be
dismissed for failure to meet the Table requirements and/or as untimely. ECF No. 26. It
also provided Petitioner with information on how to voluntarily exit the Vaccine Program.
The order concluded by informing Petitioner that non-compliance would be interpreted as
either a failure to prosecute the claim or as an inability to provide necessary support for
the claim. The petition would be dismissed in either event.
On September 30, 2020, Petitioner filed a Motion to Voluntarily Dismiss pursuant
to Rule 21(a). ECF No. 27. Petitioner indicated in her motion that “[a]n investigation of the
facts and science supporting her case has demonstrated to [P]etitioner that she will be
unable to prove that she is entitled to compensation in the Vaccine Program.”
Id. at 1
.
Petitioner further indicated that she “understands that a decision by the Special Master
dismissing her petition will result in a judgment against her. She has been advised that
such a judgment will end all her rights in the Vaccine Program.”
Id. at 3
. The motion further
stated that Respondent reserved the right, pursuant to 42 U.S.C. § 300aa-15(e), to
question the good faith and reasonable basis of Petitioner’s claim and to oppose, if
appropriate, the application for costs. Id. However, Respondent otherwise did not oppose
the motion.
To receive compensation under the Program, Petitioner must prove either 1) that
she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table –
corresponding to one of her vaccinations, or 2) that she suffered an injury that was
actually caused by a vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Examination of the record
does not disclose that Petitioner suffered a “Table Injury.” Further, the record does not
contain a medical expert’s opinion or any other persuasive evidence indicating that
Petitioner’s alleged injury was vaccine-caused.
Under the Vaccine Act, a petitioner may not be awarded compensation based on
the petitioner’s claims alone. Rather, the petition must be supported by either the medical
records or by a medical opinion. § 13(a)(1). In this case, the record does not contain
medical records or a medical opinion sufficient to demonstrate that the vaccinee was
injured by a vaccine. For these reasons, in accordance with § 12(d)(3)(A), Petitioner’s
claim for compensation is denied and this case is dismissed for insufficient proof.
The Clerk shall enter judgment accordingly.2
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review. |
4,638,852 | 2020-12-02 18:02:08.492382+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0935-23-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0935V
UNPUBLISHED
JUDSON COSTLOW, Chief Special Master Corcoran
Petitioner, Filed: October 30, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Concession;
HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;
Guillain-Barre Syndrome (GBS)
Respondent.
Amy A. Senerth, Muller Brazil, LLP, Dresher, PA, for petitioner.
Ronalda Elnetta Kosh, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT1
On June 27, 2019, Judson Costlow filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered Guillain-Barré syndrome (“GBS”)
caused in fact by the influenza vaccine he received on September 16, 2016. Petition at
1, ¶¶ 2, 20. Petitioner further alleges that he received the vaccination in the United States,
that he suffered the residual effects of his GBS for more than six months, and that neither
Petitioner nor any other party has filed a civil action or received compensation for his
GBS, alleged as vaccine caused. Id. at ¶¶ 2, 20-22. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
On October 30, 2020, Respondent filed his Rule 4(c) report in which he concedes
that Petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at
1. Although Respondent originally opposed compensation in this case based on his belief
that Petitioner had failed to establish that he suffered the residual effect of his GBS for
more than six months, upon reviewing the additional evidence provided by Petitioner he
now “has determined that [P]etitioner has satisfied this statutory requirement.” Id. at 2;
see Section 16(c)(1)(D)(i) (statutory six-month requirement). Respondent further agrees
that “[P]etitioner has satisfied all legal requirements for compensation under the Vaccine
Act as set forth in the Table and the Qualification and Aids to Interpretation.” Id.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 |
4,638,823 | 2020-12-02 18:00:37.004252+00 | null | https://cdn.ca9.uscourts.gov/datastore/opinions/2020/12/02/15-50509.pdf | FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50509
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-7
ROBERT COLLAZO, AKA Weasel,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50048
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-1
LINO DELGADO-VIDACA, AKA
Leonard Delgado, AKA Spanky,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50117
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-4
JULIO RODRIGUEZ, AKA Sniper,
Defendant-Appellant.
2 UNITED STATES V. COLLAZO
UNITED STATES OF AMERICA, No. 16-50195
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-2
STEVEN AMADOR, AKA Gordo,
AKA Insane,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-50345
Plaintiff-Appellee,
D.C. No.
v. 3:13-cr-04514-
BEN-3
ISAAC BALLESTEROS, AKA Lazy,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted En Banc January 13, 2020
Pasadena, California
Filed December 2, 2020
UNITED STATES V. COLLAZO 3
Before: Sidney R. Thomas, Chief Judge, and William A.
Fletcher, Consuelo M. Callahan, Milan D. Smith, Jr.,
Sandra S. Ikuta, Jacqueline H. Nguyen, Paul J. Watford,
Andrew D. Hurwitz, Eric D. Miller, Bridget S. Bade and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Ikuta;
Dissent by Judge W. Fletcher
SUMMARY*
Criminal Law
In appeals by five defendants who were convicted of
conspiracy to distribute controlled substances under
21 U.S.C. §§ 846
and 841, the en banc court clarified the
requirements for conspiracy under § 846 and the facts that
trigger the penalties under
21 U.S.C. §§ 841
(b)(1)(A)–(B).
The en banc court explained that to convict the defendants
of conspiracy under § 846 in this case, the government must
prove beyond a reasonable doubt that each defendant agreed
with another person that some member of the conspiracy
would commit the relevant underlying offense (here
21 U.S.C. § 841
(a)), and that each defendant had the requisite
intent for a § 841(a) conviction.
The en banc court held that in order to obtain a particular
sentence under
21 U.S.C. § 841
(b)(1)(A)(viii) and
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 UNITED STATES V. COLLAZO
§ 841(b)(1)(B)(i) for a violation of § 841(a), the government
must prove beyond a reasonable doubt the specific type and
the quantity of substance involved in the offense, but not the
defendant’s knowledge (or intent) with respect to that type
and drug quantity.
The en banc court clarified that a conviction under § 846
does not require proof of a level of criminal intent greater
than that required for the underlying offense merely because
it is a conspiracy conviction. The en banc court concluded
that to obtain a conviction and particular sentence for
conspiracy to distribute controlled substances under § 846,
the government must prove only that the defendant’s mental
state was the same as if the defendant had been charged with
the underlying offense; the government need not prove the
defendant’s knowledge (or intent) with respect to the drug
type and quantity under § 841(b).
The en banc court overruled United States v. Becerra,
992 F.2d 960
(9th Cir. 1993), and its progeny to the extent
they depart from this decision. The en banc court explained
that this court’s error in Becerra and its progeny was the
failure to recognize that the rule of coconspirator liability for
substantive offenses in Pinkerton v. United States,
328 U.S. 640
(1946), which was incorporated into the Sentencing
Guidelines and applied regardless of whether the charge was
conspiracy or a substantive offense, does not apply to the
liability determination for a § 846 conspiracy offense.
Applying this approach to the case on appeal, the en banc
court held that the district court’s instruction—requiring the
jury to determine “whether the government proved beyond a
reasonable doubt that the amount of [the specified drug] that
was reasonably foreseeable to [each defendant] or fell within
UNITED STATES V. COLLAZO 5
the scope of his particular agreement equaled or exceeded” a
specified amount—was erroneous.
The en banc court remanded to the three-judge panel to
reconsider the harmless error issue and the balance of the
issues raised by the parties in light of this opinion, and to
enter an appropriate judgment.
Judge W. Fletcher—joined by Chief Judge Thomas and
Judges Nguyen, Watford, and Hurwitz—dissented. Noting
that any fact that by law increases the penalty for a crime is
an element that must be submitted to the jury and proved
beyond a reasonable doubt, and that there is a strong
presumption that Congress intends to require a culpable mens
rea as to every element of a crime, Judge Fletcher would hold
that when the government seeks enhanced penalties under
§§ 841(b)(1)(A) or (b)(1)(B), it must prove the defendant
“knowingly or intentionally” distributed the actual controlled
substance and quantity charged under §§ 841(b)(1)(A) or
(b)(1)(B).
6 UNITED STATES V. COLLAZO
COUNSEL
Benjamin L. Coleman (argued), Coleman & Balogh LLP, San
Diego, California; Timothy A. Scott and Nicolas O. Jimenez,
Scott Trial Lawyers APC, San Diego, California; for
Defendant-Appellant Steven Amador.
John C. Lemon, San Diego, California, for Defendant-
Appellant Julio Rodriguez.
Martin G. Molina, Law Office of Martin G. Molina, San
Diego, California, for Defendant-Appellant Lino Delgado-
Vidaca.
Gary P. Burcham, Burcham & Zugman, San Diego,
California, for Defendant-Appellant Robert Collazo.
Victor N. Pippins, Higgs Fletcher & Mack, San Diego,
California, for Defendant-Appellant Isaac Ballesteros.
Daniel E. Zipp (argued), Assistant United States Attorney;
Helen H. Hong, Chief, Appellate Section, Criminal Division;
Robert S. Brewer Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
Kimberly S. Trimble and Vincent J. Brunkow, Federal
Defenders of San Diego Inc., San Diego, California; Rich
Curtner, Federal Public Defender, Ancorage, Alaska; Michael
Filipovic, Federal Public Defender, Seattle, Washington;
Anthony Gallagher, Federal Defenders of Montana, Great
Falls, Montana; Andrea George, Federal Defenders of Eastern
Washington and Idaho, Spokane, Washington; John T.
Gorman, Office of the Federal Public Defender, Mongmong,
UNITED STATES V. COLLAZO 7
Guam; Lisa Hay, Federal Public Defender, Portland, Oregon;
Steven Kalar, Office of the Federal Public Defender, San
Francisco, California; Amy Karlin, Office of the Federal
Public Defender, Los Angeles, California; Dick Rubin,
Federal Defender Services of Idaho, Boise, Idaho; Jon Sands,
Federal Public Defender, Phoenix, Arizona; Heather
Williams, Office of the Federal Defender, Sacramento,
California; Peter Wolff, Federal Public Defender, Honolulu,
Hawaii; for Amici Curiae Ninth Circuit Federal Public and
Community Defenders.
Jeffrey L. Fisher, O’Melveny & Myers LLP, Menlo Park,
California; Ashley Robertson, O’Melveny & Myers LLP,
Washington, D.C.; for Amicus Curiae National Association
of Criminal Defense Lawyers.
OPINION
IKUTA, Circuit Judge:
Five defendants convicted of conspiracy to distribute
controlled substances under
21 U.S.C. §§ 846
and 841
challenge jury instructions that required the jury to determine
“whether the government proved beyond a reasonable doubt
that the amount of [the specified drug] that was reasonably
foreseeable to [each defendant] or fell within the scope of his
particular agreement equaled or exceeded” a specified
amount. We conclude that this instruction was erroneous.
After a defendant is convicted of conspiracy under § 846 to
distribute controlled substances in violation of § 841(a)(1),
the government may establish that the defendant is subject to
the penalties in § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) by
proving beyond a reasonable doubt that the § 841(a)(1)
8 UNITED STATES V. COLLAZO
offense involved the drug type and quantity set forth in the
two penalty provisions. The government is not required to
prove that the defendant knew (or had an intent) with respect
to the drug type and quantity set forth in those penalty
provisions in order for them to apply.
I
Robert Collazo, Lino Delgado-Vidaca, Julio Rodriguez,
Steven Amador, and Isaac Ballesteros are members of the
Mexican Mafia, “the largest prison gang in the United
States.” United States v. Rodriguez,
851 F.3d 931
, 936 (9th
Cir. 2017). It was “formed in the 1950s by Hispanic street
gang members” for the purpose of protecting “Hispanics from
other such gangs within California’s jails and prisons.”
United States v. Shryock,
342 F.3d 948
, 961 (9th Cir. 2003).
Over time, it “gained significant power and control over
illegal activities in the California prison system.”
Id.
As
members were released from prison, the organization
extended its dominion to certain parts of Southern California.
Id.
Outside the prison walls, the Mexican Mafia demands
payments (called “taxes”) from local drug dealers and street
gangs in exchange for allowing them to distribute and sell
drugs in its territory. Rodriguez, 851 F.3d at 936.
The Mexican Mafia has a hierarchical structure. United
States v. Martinez,
657 F.3d 811
, 815 (9th Cir. 2011). At the
top of the structure are the “made members” who are
independently responsible for their own territory. Each made
member has a “secretary” who ensures that the member’s
decisions are implemented. Further down the hierarchy are
the “meseros” who are responsible for making tactical
decisions, such as when to initiate prison riots, and for
overseeing the organization’s criminal activities within a
UNITED STATES V. COLLAZO 9
particular prison yard. The lower level participants are
referred to as “associates.” The primary duty of an associate
is to generate money for the Mexican Mafia through the
distribution and sale of narcotics. Whether narcotics are sold
in prison or on the street, every transaction is conducted on
behalf of the made member who controls the particular
territory.
The five defendants in this appeal worked for Luis “Boo-
Boo” Garcia, a made member of the Mexican Mafia who is
serving a life sentence at Pelican Bay State Prison in Northern
California. Each defendant had a defined role in the
organization. Robert Collazo was in charge of a prison yard
at Donovan Prison, and was responsible for coordinating
narcotics being smuggled into prison on a regular basis:
methamphetamine was smuggled by the ounce (roughly
28 grams), and heroin was smuggled by the piece (roughly
24 grams). Once the narcotics were smuggled into prison,
Collazo worked with various Mexican Mafia members,
including Ballesteros, to transfer those narcotics throughout
the prison. Collazo also sent Garcia $400 every month. Lino
Delgado-Vidaca, a Mexican Mafia member who had been
released from prison, collected taxes from drug dealers in San
Diego and conveyed payments to Garcia through Garcia’s
fiancée. Julio Rodriguez was initially incarcerated at
Lancaster State Prison and then transferred to Ironwood State
Prison. He was responsible for smuggling heroin into both
prisons. Rodriguez smuggled heroin in 50-gram increments;
each delivery included one 25-gram bag and two 12.5-gram
bags. Steven Amador, who was incarcerated at Centinela
State Prison, served as Garcia’s secretary. His primary
responsibility was collecting rent on behalf of Garcia.
Amador also helped smuggle narcotics into Centinela. Isaac
Ballesteros was incarcerated at Donovan State Prison. As a
10 UNITED STATES V. COLLAZO
mesero, he oversaw distribution and tax collection in one of
the prison yards.
Following a significant investigation by a joint state and
federal gang task force, the defendants were arrested and
charged with two counts of conspiracy. We are concerned
only with the second count: conspiracy to distribute
controlled substances, in violation of
21 U.S.C. §§ 841
(a)(1),
841(b)(1)(A)(viii), 841(b)(1)(B)(i), and 846.1 The indictment
did not charge any defendant with a substantive offense
related to this conspiracy count.
After a ten-day trial, the parties agreed to jury instructions
and verdict forms. For Count 2 (conspiracy to distribute
controlled substances), the jury was instructed as follows:
The defendants are charged in Count 2 of the
indictment with conspiracy to distribute
controlled substances in violation of Section
841(a) and Section 846 of Title 21 of the
United States Code. In order for a defendant
to be found guilty of that charge, the
government must prove each of the following
elements beyond a reasonable doubt:
1
The indictment specifically alleged that the defendants “did
knowingly and intentionally conspire . . . to distribute: 50 grams and more
of actual methamphetamine, a Schedule II Controlled Substance;
500 grams and more of a mixture containing methamphetamine, a
Schedule II Controlled Substance; and 100 grams and more of heroin, a
Schedule II Controlled Substance.” The indictment also alleged a RICO
conspiracy, in violation of
18 U.S.C. § 1962
(d), and criminal forfeiture,
pursuant to
18 U.S.C. § 1963
.
UNITED STATES V. COLLAZO 11
First, beginning on a date unknown and
continuing up to and including March
2013, there was an agreement between
two or more persons to distribute
methamphetamine or heroin; and
Second, the defendant joined in the
agreement knowing of its purpose and
intending to help accomplish that purpose.
If the jury found a defendant guilty of conspiracy to distribute
controlled substances, the jury was instructed to make special
findings regarding drug quantity:
If you find a defendant guilty of the charge in
Count 2 of the indictment, you are then to
determine as to that defendant whether the
government proved beyond a reasonable
doubt that the amount of methamphetamine
that was reasonably foreseeable to him or fell
within the scope of his particular agreement
equaled or exceeded 50 grams of actual
methamphetamine or 500 grams of a mixture
containing methamphetamine in connection
with his criminal activity. Your decision as to
weight must be unanimous.
If you find a defendant guilty of the charge in
Count 2 of the indictment, you are then to
determine as to that defendant whether the
government proved beyond a reasonable
doubt that the amount of heroin that was
reasonably foreseeable to him or fell within
the scope of his particular agreement equaled
12 UNITED STATES V. COLLAZO
or exceeded 100 grams of heroin in
connection with his criminal activity. Your
decision as to weight must be unanimous.
During deliberation, the jury returned a note asking for
clarification on its duty to make special findings regarding
drug quantity.2 Only then did defense counsel raise his
concern that the jury instructions were not in accordance with
Ninth Circuit precedent. Relying on United States v. Ortiz,
362 F.3d 1274
(9th Cir. 2004), defense counsel argued that
the drug-quantity instruction should be phrased in the
conjunctive (reasonably foreseeable to him and fell within the
scope of his particular agreement), rather than in the
disjunctive (reasonably foreseeable to him or fell within the
scope of his particular agreement).3 After a brief recess, the
trial court ruled that Ortiz was not applicable, because it
interpreted the United States Sentencing Guidelines (the
“Guidelines”), rather than the relevant criminal statutes;
therefore, the court declined to change the jury instructions.
2
The note read:
Count 2. If we find the defendant guilty on Count 2
“foreseeable to him or fell within the scope of his
particular agreement equal to or exceeded 50 grams of
pure meth or 500 grams of a mixture . . .”
Q[:] Does this mean we have to determine if each
defendant individually met the 50/500 gram
requirement?
3
Defense counsel for each defendant expressly joined this argument,
except Delgado-Vidaca’s counsel.
UNITED STATES V. COLLAZO 13
The jury found each defendant guilty of conspiracy to
distribute controlled substances.4 As for the special findings
regarding drug quantity under § 841(b)(1)(A)–(B), the jury
found the requisite methamphetamine amount for Collazo and
Delgado-Vidaca, and the requisite heroin amount for
Amador, Ballesteros, Collazo, and Rodriguez. Each
defendant timely appealed, raising multiple claims of error,
including a challenge to the jury instructions for Count 2. 5
At the suggestion of the three-judge panel initially
assigned the consolidated appeals, we voted to hear the
appeals en banc to clarify our jury instructions for conspiracy
under § 846 and the facts that trigger the penalties under
§ 841(b)(1)(A)–(B).6 As explained in more detail below, our
prior decisions on this issue relied on the Guidelines’
definition of “relevant conduct,” see U.S.S.G. § 1B1.3
(1991), to determine a defendant’s liability for conspiracy
under
21 U.S.C. § 846
and the appropriate penalty under
21 U.S.C. § 841
. See United States v. Torres,
869 F.3d 1089
,
1097–98 (9th Cir. 2017). After the Sentencing Commission
revised the Guidelines’ definition of “relevant conduct,” we
recognized it was necessary to resolve en banc how this
change affected our interpretation of § 846 and § 841. Id. We
now conclude that the Guidelines’ definition of “relevant
conduct” is not applicable to our interpretation of § 846 or
§ 841. As a result, we must overrule our precedent and begin
4
The jury also found each defendant guilty of participating in the
RICO conspiracy.
5
Ballesteros did not join his co-defendants in challenging the jury
instructions on appeal until we requested supplemental briefing.
6
We address only this issue, and return the appeals to the three-judge
panel to address the remaining issues.
14 UNITED STATES V. COLLAZO
anew to determine what the government must prove to secure
a conviction and sentence under §§ 846 and 841(b).
We have jurisdiction under
28 U.S.C. § 1291
. “We
review de novo whether the jury instructions accurately
define the elements of a statutory offense.” United States v.
Hicks,
217 F.3d 1038
, 1045 (9th Cir. 2000).
II
In determining whether the jury instructions accurately
defined each element of a § 846 conspiracy to distribute
controlled substances in violation of § 841, we begin by
explaining the legal framework for these offenses.
A
The defendants were charged with conspiracy under
21 U.S.C. § 846
, which provides: “Any person who attempts
or conspires to commit any offense defined in this subchapter
shall be subject to the same penalties as those prescribed for
the offense, the commission of which was the object of the
attempt or conspiracy.” The pertinent offense in this case is
set forth in
21 U.S.C. § 841
(a)(1), and the penalties
prescribed for this offense are set forth in
21 U.S.C. § 841
(b)(1)(A)–(B). Although the defendants were not
charged with any substantive offenses under § 841(a)(1), this
section and § 841(b) are relevant to determining the elements
of the § 846 conspiracy convictions here.
In enacting § 846, Congress adopted the common law
understanding of conspiracy. United States v. Shabani,
513 U.S. 10
, 13–14 (1994). Therefore, our interpretation of
§ 846 is guided by well-established principles of conspiracy
UNITED STATES V. COLLAZO 15
law. See Ocasio v. United States,
136 S. Ct. 1423
, 1429
(2016) (stating that the general federal conspiracy statute’s
“use of the term ‘conspire’ incorporates long-recognized
principles of conspiracy law”).
First, the essence of conspiracy “is an agreement to
commit an unlawful act.” Iannelli v. United States,
420 U.S. 770
, 777 (1975); see also Ocasio,
136 S. Ct. at 1429
(“A
defendant must merely reach an agreement with the specific
intent that the underlying crime be committed by some
member of the conspiracy.” (internal quotation marks and
emphasis omitted)). The agreement itself is the offense, and
it is not necessary for the government to prove that the
defendant or other participants committed the unlawful object
of the conspiracy.7 See Salinas v. United States,
522 U.S. 52
,
65 (1997). The government is not required to prove every
detail of the agreement. See, e.g., United States v. Sharif,
817 F.2d 1375
, 1378 (9th Cir. 1987) (rejecting the argument
that “there can be no conspiracy without proof of . . . such
terms as price, quantity, and time, place, and manner of
delivery”). Rather, a fact-finder may infer the existence and
scope of the agreement from the facts and circumstances
established at trial. Iannelli,
420 U.S. at
777 n.10; United
States v. Espinoza-Valdez,
889 F.3d 654
, 656 (9th Cir. 2018).
“Once the existence of the conspiracy is shown, evidence
establishing beyond a reasonable doubt a knowing connection
of the defendant with the conspiracy, even though the
7
Nor does the government have to prove that the defendant or a
coconspirator took an overt act in furtherance of the agreement. See
Whitfield v. United States,
543 U.S. 209
, 213–14 (2005). This
distinguishes § 846 from the general federal conspiracy statute,
18 U.S.C. § 371
, which requires proof of an agreement among two or more persons
to commit an offense against the United States and that “one or more of
such persons do any act to effect the object of the conspiracy.”
16 UNITED STATES V. COLLAZO
connection is slight, is sufficient to convict him of knowing
participation in the conspiracy.” United States v. Meyers,
847 F.2d 1408
, 1413 (9th Cir. 1988). At minimum, the
government must “show that each defendant knew or had a
reason to know of the scope of the conspiracy and that each
defendant had reason to believe that their own benefits were
dependent upon the success of the entire venture.”8 United
States v. Lapier,
796 F.3d 1090
, 1095 (9th Cir. 2015)
(quoting United States v. Kostoff,
585 F.2d 378
, 380 (9th Cir.
1978) (per curiam)). When the government proves that a
defendant had a knowing connection with an extensive
enterprise (such as a drug trafficking organization) and had
reason to know of its scope, a fact-finder may infer that the
defendant agreed to the entire unlawful scheme.9 See United
States v. Smith,
609 F.2d 1294
, 1300 (9th Cir. 1979); see also
United States v. Tarantino,
846 F.2d 1384
, 1393 (D.C. Cir.
1988) (applying similar principles in a case involving several
defendants who were alleged members of an extensive drug
conspiracy).
8
“Although conspirators must pursue the same criminal objective, a
conspirator need not agree to commit or facilitate each and every part of
the substantive offense.” Ocasio,
136 S. Ct. at 1429
(internal quotation
marks omitted and alteration adopted).
9
A defendant convicted of conspiracy may also be held criminally
liable for substantive offenses committed by other members of the
conspiracy, so long as the offenses were reasonably foreseeable and
committed in furtherance of the conspiracy. See Pinkerton v. United
States,
328 U.S. 640
, 647–48 (1946); United States v. Sullivan,
522 F.3d 967
, 977 (9th Cir. 2008) (per curiam). Such liability is not at issue here.
The rule of coconspirator liability under Pinkerton applies when the
government charges a defendant with substantive offenses that were
committed by other members of the conspiracy, see Pinkerton,
328 U.S. at
647–48, not when the government charges a defendant with the crime
of conspiracy itself, see
id. at 645
.
UNITED STATES V. COLLAZO 17
Second, the government must prove that the defendant
had the “intent to effectuate the object of the conspiracy.”
United States v. U.S. Gypsum Co.,
438 U.S. 422
, 443 n.20
(1978); see also Salinas,
522 U.S. at 65
(“A conspirator must
intend to further an endeavor which, if completed, would
satisfy all of the elements of a substantive criminal offense.”).
The Supreme Court has established that “in order to sustain
a judgment of conviction on a charge of conspiracy to violate
a federal statute, the Government must prove at least the
degree of criminal intent necessary for the substantive offense
itself.” United States v. Feola,
420 U.S. 671
, 686 (1975).
Applying the foregoing framework to § 846, in order to
convict a defendant of conspiracy, the government must
prove beyond a reasonable doubt that (1) the defendant
agreed with another person that some member of the
conspiracy would commit the relevant underlying offense
(here § 841(a)), and that (2) the defendant had the requisite
intent necessary for a conviction of the underlying offense.10
If the government satisfies its burden, the defendant “shall be
subject to the same penalties as those prescribed for the
offense, the commission of which was the object of the
attempt or conspiracy.”
21 U.S.C. § 846
.
10
For a conspiracy offense under § 846, the government need not
prove a level of criminal intent greater than that for the underlying
offense, see infra Section III. Because the government need not prove that
a defendant knew (or had an intent) with respect to a specific drug type
and quantity in order to secure a conviction under § 841(a) and penalties
under § 841(b)(1), see infra Section II.B, the government likewise need
not prove such knowledge or intent for purposes of § 846.
18 UNITED STATES V. COLLAZO
B
We now turn to the underlying offense at issue here,
21 U.S.C. § 841
(a)(1), and the penalties prescribed for that
offense under § 841(b)(1)(A)–(B). In particular, we focus on
determining the requisite intent necessary for a conviction of
§ 841(a) and the imposition of the penalties under
§ 841(b)(A)–(B).
1
Section 841(a)(1) is straightforward. It states, “Except as
authorized by this subchapter, it shall be unlawful for any
person knowingly or intentionally—(1) to manufacture,
distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance.” The text of
the statute requires the government to prove beyond a
reasonable doubt that the defendant (1) knowingly or
intentionally (2) distributed11 (3) any “controlled substance,”
which is defined as “a drug or other substance, or immediate
precursor, included in” schedules I–V listed in
21 U.S.C. § 812
. See
21 U.S.C. § 802
(6); see also McFadden v. United
States,
576 U.S. 186
, 192 (2015) (holding that as used in
§ 841(a)(1), the phrase “a controlled substance” means “some
unspecified substance listed on the federal drug schedules”).
Section 841(a) does not prescribe any penalties. Instead,
“any person who violates [§ 841(a)] shall be sentenced”
pursuant to § 841(b), which sets out the applicable penalties
when the violation involves specified predicate facts. Two
penalty provisions in § 841(b) are at issue here, one for
11
For convenience, we use the term “distribute” and its variations to
refer collectively to the actions prohibited by § 841(a)(1).
UNITED STATES V. COLLAZO 19
offenses involving methamphetamine and one for those
involving heroin. The methamphetamine provision states:
[A]ny person who violates subsection (a) of
this section shall be sentenced as follows:
(1)(A) In the case of a violation of
subsection (a) of this section involving—
...
(viii) 50 grams or more of
methamphetamine, its salts, isomers,
and salts of its isomers or 500 grams
or more of a mixture or substance
containing a detectable amount of
methamphetamine, its salts, isomers,
or salts of its isomers;
such person shall be sentenced to a term of
imprisonment which may not be less than
10 years or more than life and if death or
serious bodily injury results from the use of
such substance shall be not less than 20 years
or more than life, a fine not to exceed the
greater of that authorized in accordance with
the provisions of Title 18 or $10,000,000 if
the defendant is an individual or $50,000,000
if the defendant is other than an individual, or
both.
21 U.S.C. § 841
(b)(1)(A)(viii). The heroin provision has the
same structure, but applies to offenses involving “100 grams
or more of a mixture or substance containing a detectable
20 UNITED STATES V. COLLAZO
amount of heroin” and imposes different terms of
imprisonment and fine amounts. 12
21 U.S.C. § 841
(b)(1)(B)(i).
Before the Supreme Court’s decision in Apprendi v. New
Jersey,
530 U.S. 466
(2000), a defendant could be sentenced
“pursuant to a finding made by a judge . . . under a
preponderance of the evidence standard” because we
understood the drug type and quantity in § 841(b) to be a
“sentencing factor, not an element of the crime.” United
States v. Nordby,
225 F.3d 1053
, 1058 (9th Cir. 2000),
overruled by United States v. Buckland,
289 F.3d 558
, 568
(9th Cir. 2002) (en banc); see also Buckland,
289 F.3d at
564
& n.2 (stating that “before Apprendi virtually everyone
routinely treated drug quantity under § 841 as a ‘sentencing
factor’ that need not be found beyond a reasonable doubt by
a properly instructed jury”).
12
21 U.S.C. § 841
(b)(1)(B)(i) states:
(B) In the case of a violation of subsection (a) of this
section involving–
(i) 100 grams or more of a mixture or substance
containing a detectable amount of heroin;
...
such person shall be sentenced to a term of
imprisonment which may not be less than 5 years and
not more than 40 years and if death or serious bodily
injury results from the use of such substance shall be
not less than 20 years or more than life, a fine not to
exceed the greater of that authorized in accordance with
the provisions of Title 18 or $5,000,000 if the defendant
is an individual or $25,000,000 if the defendant is other
than an individual, or both.
UNITED STATES V. COLLAZO 21
This changed after Apprendi and Alleyne v. United States,
570 U.S. 99
(2013). As explained in Alleyne, the Sixth
Amendment “provides that those accused of a crime have the
right to a trial by an impartial jury,” and “[t]his right, in
conjunction with the Due Process Clause, requires that each
element of a crime be proved to the jury beyond a reasonable
doubt.” 570 U.S. at 104 (cleaned up). To ensure this right,
it is necessary to make a “proper designation of the facts that
are elements of the crime.” Id. at 104–05. In this context,
Apprendi held that “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum” constitutes an element of the
crime that “must be submitted to a jury, and proved beyond
a reasonable doubt.”
530 U.S. at 490
. Alleyne expanded on
Apprendi, and held that any fact which increases a mandatory
minimum also “constitutes an ‘element’ or ‘ingredient’ of the
charged offense” and must be submitted to the jury. 570 U.S.
at 107–08.
Under Alleyne’s reasoning, the facts of drug type and
quantity under § 841(b) constitute elements or ingredients of
the crime because they affect the penalty that can be imposed
on a defendant. Therefore, “in order to save [the] statute
from unconstitutionality,” we reinterpreted § 841 as requiring
such facts to be proved beyond a reasonable doubt to the jury.
Buckland,
289 F.3d at
564–68 (citation omitted). As made
clear in Apprendi and Alleyne, however, the purpose of
Buckland’s requirement is to protect a defendant’s Sixth and
Fifth Amendment rights. We treat drug type and quantity as
elements under section 841(b)(1) only for these constitutional
purposes. See United States v. Toliver,
351 F.3d 423
, 430
22 UNITED STATES V. COLLAZO
(9th Cir. 2003), abrogated on other grounds by Blakely v.
Washington,
542 U.S. 296
(2004).13
Because Apprendi and Alleyne “did not rewrite § 841(b)
to add a new mens rea requirement,” United States v. Dado,
759 F.3d 550
, 570 (6th Cir. 2014), they do not assist us in
determining the requisite mens rea necessary for the
imposition of penalties under § 841(b)(1)(A)–(B), the issue
now before us. Section 841(b)(1), unlike § 841(a), is silent as
to any mens rea requirement. We must therefore determine
whether Congress intended to require proof of a defendant’s
mens rea with respect to the requisite drug type and quantity
for the penalties in § 841(b)(1)(A)–(B) to apply. We turn to
that issue next.
2
Section 841(a) makes it unlawful for anyone to
“knowingly or intentionally” commit the offense of
distributing a controlled substance. We must therefore decide
“how far down” the text of the statute “the word ‘knowingly’
is intended to travel.” Liparota v. United States,
471 U.S. 419
, 424 n.7 (1985) (quoting W. LaFave & A. Scott, Criminal
Law § 27 (1972)).
13
The dissent argues that Alleyne “reflects a broad concern about the
unfairness of sentencing schemes in which the facts that are legally
essential to the punishment need not be found beyond a reasonable doubt.”
Dissent at 65. Contrary to the dissent, Alleyne did not hold that it was
generally unfair for the district court to find facts that could increase the
sentence for a “legally prescribed offense” by a preponderance of
evidence. See Alleyne, 570 U.S. at 117. Rather, Alleyne held that it was
unconstitutional (a violation of the Sixth and Fifth Amendment) for the
court to find such a fact. Id.
UNITED STATES V. COLLAZO 23
In determining whether Congress intended a mens rea
requirement in a criminal statute to apply to noncontiguous
words or phrases, the Supreme Court uses ordinary tools of
statutory interpretation. The Court starts “as always, with the
language of the statute,” Dean v. United States,
556 U.S. 568
,
572 (2009) (quoting Williams v. Taylor,
529 U.S. 420
, 431
(2000)), and considers the natural reading of the language
using “ordinary English grammar,” Flores-Figueroa v.
United States,
556 U.S. 646
, 650 (2009). In Flores-Figueroa,
for instance, the Court considered the language in 18 U.S.C.
§ 1028A(a)(1)—which punishes “[w]hoever . . . knowingly
. . . uses . . . a means of identification of another person”—to
determine whether “knowingly” applied to “means of
identification of another person.”14 556 U.S. at 650. The
Court held it did. Id. at 657. The statute’s adverb
(“knowingly”) was placed before a transitive verb (“uses”)
that has an object (“a means of identification of another
person”). Id. at 650–51. Accordingly, it was “natural to
read” this statutory language as establishing “how the subject
performed the entire action, including the object as set forth
in the sentence.” Id.; see also Rehaif v. United States,
139 S. Ct. 2191
, 2195 (2019) (holding that the term “knowingly” in
§ 924(a)(2)—which imposes penalties on a person who
“knowingly violates” certain subsections—“modifies the verb
14
Section 1028A(a)(1) states that:
Whoever, during and in relation to any felony violation
enumerated in subsection (c), knowingly transfers,
possesses, or uses, without lawful authority, a means of
identification of another person shall, in addition to the
punishment provided for such felony, be sentenced to
a term of imprisonment of 2 years.
(emphasis added).
24 UNITED STATES V. COLLAZO
‘violates’ and its direct object,” including a separate, cross-
referenced statutory provision,
18 U.S.C. § 922
(g)).15
This rule is not rigid: the word “knowingly” does not
necessarily apply to every word in “a long statutory phrase,
such that questions may reasonably arise about how far into
the statute the modifier extends.” Rehaif,
139 S. Ct. at 2196
;
see also United States v. Taylor,
239 F.3d 994
, 997 (9th Cir.
2001) (holding that the word “knowingly” in
18 U.S.C. § 2423
(a), which makes it unlawful to “knowingly transpor[t]
an individual who has not attained the age of 18 years in
interstate or foreign commerce . . . with intent that the
individual engage in prostitution,” does not require the
15
18 U.S.C. § 924
(a)(2) provides:
Whoever knowingly violates subsection (a)(6), (d), (g),
(h), (i), (j), or (o) of section 922 shall be fined as
provided in this title, imprisoned not more than 10
years, or both.
18 U.S.C. § 922
(g)(5)(A) provides:
(g) It shall be unlawful for any person— . . .
(5) who, being an alien—(A) is illegally or
unlawfully in the United States . . . to . . . possess
. . . any firearm or ammunition . . . .
The Court read the word “knowingly” from § 924(a)(2) into § 922(g) and
then applied the “knowingly” requirement to each of the elements in the
statutory sentence in § 922(g)(5)(A) “that make a defendant’s behavior
criminal.” Rehaif,
139 S. Ct. at 2196
.
UNITED STATES V. COLLAZO 25
government to prove that the defendant knew the victim’s
age).16
The Court also considers the “surrounding text and
structure.” Maracich v. Spears,
570 U.S. 48
, 76 (2013). In
Dean, for instance, the Court interpreted
18 U.S.C. § 924
(c),
which provides:
[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime . . . uses or carries a firearm, or who, in
furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment
provided for such crime of violence or drug
trafficking crime—
(i) be sentenced to a term of
imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced
to a term of imprisonment of not less than
7 years; and
(iii) if the firearm is discharged, be
sentenced to a term of imprisonment of
not less than 10 years.
16
Contrary to the dissent’s assertion, the Court does not count the
number of words between the mens rea requirement and an element of the
crime to aid its determination as to whether to apply the mens rea
requirement. Dissent at 59. Rather, the Court begins by considering the
natural reading of the statute using ordinary English grammar, and a
grammatical sentence can nevertheless be quite long. See, e.g., Thomas
R. Haggard, Justifiably Long Sentences, S.C. Law. Feb. 2000, at 11.
26 UNITED STATES V. COLLAZO
556 U.S. at 571 (quoting
18 U.S.C. § 924
(c)(1)(A)) (emphasis
added). The Court held that there is no intent requirement
with respect to subsection (iii).
Id.
at 572–73. Although
“Congress expressly included an intent requirement for
[subsection (ii)]” by defining “brandish” in
18 U.S.C. § 924
(c)(4) to mean “to display all or part of the firearm . . .
in order to intimidate that person,” it did not define
“discharge” to include such an intent requirement.
Id.
(emphasis omitted). “[W]here Congress includes particular
language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.”
Id. at 573
(quoting Russello v. United
States,
464 U.S. 16
, 23 (1983)).
In addition to considering the text and structure of the
statute, the Court recognizes the presumption, traceable to the
common law, that “Congress intends to require a defendant
to possess a culpable mental state regarding each of the
statutory elements that criminalize otherwise innocent
conduct.” Rehaif,
139 S. Ct. at 2195
(citation omitted). In
applying this background principle, the Court has
differentiated between statutes that are silent on mens rea,
and those that include a mens rea requirement. Where a
criminal statute is entirely silent on the mens rea required for
a criminal offense, the Court presumes that Congress did not
intend to “dispense with a conventional mens rea element,
which would require that the defendant know the facts that
make his conduct illegal.” Staples v. United States,
511 U.S. 600
, 605 (1994). In such cases, the Court deems the
presumption of mens rea to be rebutted only when there is a
strong indication that Congress has created “‘public welfare’
or ‘regulatory’ offenses” and imposed “a form of strict
criminal liability through statutes that do not require the
UNITED STATES V. COLLAZO 27
defendant to know the facts that make his conduct illegal.”
Id. at 606
. Where a statute includes a mens rea requirement,
such as § 841, we are not faced with the question whether
Congress intended to dispense with a mens rea requirement
entirely, as in Staples; rather, we must determine “how far
into the statute [does § 841(a)’s “knowingly”] modifier
extend[].” Rehaif,
139 S. Ct. at 2196
.17
The presumption that Congress intended the defendant to
possess a culpable mental state as to “each of the statutory
elements that criminalize otherwise innocent conduct,”
id. at 2195
(quoting United States v. X-Citement Video, Inc.,
513 U.S. 64
, 72 (1994)), is particularly appropriate when a
different reading would have the effect of criminalizing “a
broad range of apparently innocent conduct,” X-Citement
Video,
513 U.S. at 71
(citation omitted). Thus, in X-Citement
Video, the Court concluded that the word “knowingly” in
“knowingly transports . . . any visual depiction, if . . . such
visual depiction involves the use of a minor,”
18 U.S.C. § 2252
(a), also applied to the phrase “involves the use of a
minor” because “the age of the performers is the crucial
element separating legal innocence from wrongful conduct.”
513 U.S. at 73. Similarly, in Rehaif, the Court held that the
word “knowingly” in the phrase whoever “knowingly
violates” § 922(g), which prohibits persons with certain
statuses from possessing firearms, applied to the status
element in § 922(g) because this reading “helps advance the
purpose of scienter, for it helps to separate wrongful from
innocent acts.”
139 S. Ct. at
2196–97. The Court reasoned
that “the possession of a gun can be entirely innocent,” and
17
Because Staples has little relevance to the “how far” question raised
in our case, the dissent’s reliance on Staples, Dissent at 55–56, 62, is
mistaken.
28 UNITED STATES V. COLLAZO
only the defendant’s status distinguished an innocent act from
a wrongful one under the statute.
Id. at 2197
.
By contrast, absent statutory language suggesting
otherwise, the scienter presumption does not apply to
elements that do not separate innocent from wrongful
conduct. See
id. at 2196
(holding that because “jurisdictional
elements normally have nothing to do with the wrongfulness
of the defendant’s conduct, such elements are not subject to
the presumption in favor of scienter”). Thus, the Court
declined to apply this presumption in Dean because a
defendant found guilty of violating
18 U.S.C. § 924
(c) “is
already guilty of unlawful conduct twice over: a violent or
drug trafficking offense and the use, carrying, or possession
of a firearm in the course of that offense,” and the finding that
the firearm is discharged (which is required under
§ 924(c)(1)(A)(iii) in order to impose a ten-year sentence)
merely enhances the consequences for such unlawful acts.
556 U.S. at 576; see also United States v. Crowder,
656 F.3d 870
, 875 (9th Cir. 2011) (holding that the word “knowingly”
in the Sex Offender Registration and Notification Act
(SORNA),
18 U.S.C. § 2250
(a)—which imposes criminal
penalties on any person who “knowingly fails to register or
update a registration as required by [SORNA]”—does not
apply to the phrase “as required by [SORNA]” because a
defendant would know failing to register was “not an
innocent act”).
When the statutory language is ambiguous, the Court
determines the meaning of the statutory text using other tools
of statutory construction, including the rule of lenity, the
canon of constitutional avoidance, and consistency with
legislative history. Thus, in X-Citement Video, the Court
noted that eliminating a scienter requirement as to the age of
UNITED STATES V. COLLAZO 29
the performers in a video involving sexual conduct “would
raise serious constitutional doubts” given that “nonobscene,
sexually explicit materials involving persons over the age of
17 are protected by the First Amendment,” and it was
“incumbent upon [the Court] to read the statute to eliminate
those doubts so long as such a reading is not plainly contrary
to the intent of Congress.” 513 U.S. at 72, 78. In cases of
“grievous ambiguity or uncertainty in the statute,” Dean,
556 U.S. at 577
(quoting Muscarello v. United States,
524 U.S. 125
, 138–39 (1998)), the Court has also applied the
“longstanding recognition of the principle that ambiguity
concerning the ambit of criminal statutes should be resolved
in favor of lenity,” Liparota,
471 U.S. at 427
(citation
omitted). Finally, the Court has considered legislative history
but has generally given it little weight. See, e.g., Liparota,
471 U.S. at
430 n.13 (rejecting the government’s argument
that the legislative history supports its position); Rehaif,
139 S. Ct. at 2199
(rejecting the government’s legislative
history argument given that the history was “at best
inconclusive”).
3
We now apply these principles to § 841 to determine
whether the phrase “knowingly” in § 841(a) applies to the
drug type and quantity set forth in § 841(b)(1).
Section 841(a)(1) makes it unlawful for “any person
knowingly or intentionally” to distribute “a controlled
substance,” which is an “unspecified substance listed on the
federal drug schedules.” McFadden, 576 U.S. at 192.
Section 841(b)(1)(A)–(B) provide for the penalties to be
imposed in the case of a § 841(a)(1) violation “involving”
30 UNITED STATES V. COLLAZO
certain types and quantities of drugs. Unlike § 841(a),
§ 841(b)(1) is silent as to any mens rea requirement.
“As a matter of ordinary English grammar,” it is natural
to read the intent requirement of “knowingly or intentionally”
as modifying only the elements contained in the statutory
phrase defining the § 841(a)(1) offense, i.e., “distribute” and
“a controlled substance.” See Flores-Figueroa,
556 U.S. at 650
. Section 841(b) is not the object of the verbs in
§ 841(a)(1). Compare
21 U.S.C. § 841
, with Rehaif,
139 S. Ct. at 2195
(relying on the fact that, in § 924(a)(2), the adverb
“knowingly” modifies the verb “violates” and its direct
object, § 922(g)). There is no natural or ordinary way to read
the intent requirement in § 841(a)(1) as modifying the drug
types and quantities in § 841(b).
While we begin by considering the natural reading of the
language, see Flores-Figueroa,
556 U.S. at 650
, we do not
end there. We next turn to the structure and context of the
statute. See Dean,
556 U.S. at 572
. As in Dean, the structure
of § 841(b) suggests that § 841(b)(1)(A)(viii) and
§ 841(b)(1)(B)(i) do not require proof that the defendant
knew about the drug type and quantity. In § 841(b)(6),
another provision in the same statute, Congress expressly
provided that those who violate § 841(a) and “knowingly or
intentionally use a poison . . . on Federal land,” thus causing
specified harms, are subject to certain penalties.18 21 U.S.C.
18
21 U.S.C. § 841
(b)(6) provides:
Any person who violates subsection (a), or attempts to
do so, and knowingly or intentionally uses a poison,
chemical, or other hazardous substance on Federal land,
and, by such use—
UNITED STATES V. COLLAZO 31
§ 841(b)(6) (emphasis added). This language shows that
Congress knew how to require proof of mens rea with respect
to the predicate facts for sentences under § 841(b), and chose
not to do so in § 841(b)(1)(A)–(B). “Where Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.” Dean,
556 U.S. at 573
(alteration adopted and quotation omitted). Moreover, if we
were to interpret the intent requirement in § 841(a) as
modifying the numerous sentencing facts included under
§ 841(b), the intent requirement in § 841(b)(6) would be
surplusage. The “canon against surplusage is strongest”
where, as here, “an interpretation would render superfluous
another part of the same statutory scheme.” Marx v. Gen.
Revenue Corp.,
568 U.S. 371
, 386 (2013).
Because this redundancy fatally undermines the dissent’s
position, the dissent attempts to distinguish § 841(b)(6) from
§ 841(b)(1). According to the dissent, while the mens rea
requirement in § 841(a) travels to the various subsections of
§ 841(b)(1), it does not travel to § 841(b)(6) because this
subsection specifies a “separate criminal act” of “us[ing] a
(A) creates a serious hazard to humans, wildlife, or
domestic animals,
(B) degrades or harms the environment or natural
resources, or
(C) pollutes an aquifer, spring, stream, river, or
body of water,
shall be fined in accordance with Title 18 or imprisoned
not more than five years, or both.
32 UNITED STATES V. COLLAZO
poison, chemical, or other hazardous substance on Federal
land.” Dissent at 63–64. And because the traveling mens rea
requirement in § 841(a) cannot reach this “separate criminal
act,” the dissent contends, Congress had to add an additional
mens rea requirement to § 841(b)(6). Id.
This argument has no support in grammar or caselaw.
The structure of § 841(b)(1) and § 841(b)(6) is similar; both
apply to “any person who violates subsection (a),” and list
certain predicate facts that subject such person to specified
penalties.19 As we have explained, there is no natural or
grammatical way to read the mens rea in § 841(a)(1) as
applying to the predicate facts in § 841(b)(1). Not
surprisingly, it is equally unnatural and ungrammatical to
read the mens rea in § 841(a)(1) to apply to the predicate facts
in § 841(b)(6). The dissent fails to explain why it is more
unnatural and ungrammatical to apply § 841(a)’s mens rea
requirement to § 841(b)(6) than to § 841(b)(1), such that the
mens rea travels to § 841(b)(1) but not § 841(b)(6). Nor has
the dissent explained why it makes a difference that the
conduct described in § 841(b)(6) (poisoning federal lands)
could constitute a separate criminal act prosecutable under
some other statute. Neither the Supreme Court nor we have
endorsed any background principle that mens rea
requirements are less likely to travel to predicate facts that
can be prosecuted separately under other federal laws.
19
The predicate facts in § 841(b)(6) are not distinguishable from the
predicate facts in § 841(b)(1) in any relevant way. Both subsections
provide the predicate facts for sentencing purposes. When Congress
wanted to establish independently prosecutable offenses in § 841, it added
additional sections, such as § 841(g) (criminalizing internet sales of date
rape drugs) and § 841(h) (criminalizing dispensing of controlled
substances by means of the internet).
UNITED STATES V. COLLAZO 33
The presumption that Congress did not want to
“criminalize a broad range of apparently innocent conduct,”
X-Citement Video,
513 U.S. at 71
(cleaned up), and the
importance of scienter “in separating wrongful from innocent
acts,” Rehaif,
139 S. Ct. at 2196
, do not undercut our reading
of the statutory text here.20 Knowingly distributing a
controlled substance in violation of § 841(a)(1) is not an
“entirely innocent” act. Rehaif,
139 S. Ct. at 2197
.
Regardless of the type and quantity of the controlled
substance, there is no risk that a defendant would fail to
understand the unlawful nature of the act. Our precedent is
in accord; we have long recognized the basic rule that a
defendant charged with a controlled substance offense “need
not know the exact nature of the substance with which he was
dealing,” but “can be convicted under § 841 . . . if he believes
he has some controlled substance in his possession.” United
States v. Ramirez-Ramirez,
875 F.2d 772
, 774 (9th Cir. 1989)
(quotation omitted) (collecting cases).
Nor does the structure of § 841(a) and (b), providing
different penalties for different drug types and quantities,
raise an inference that some scienter is necessary. See Dean,
556 U.S. at 573
. Where a criminal statute does not provide
a scienter requirement, the Court has held the imposition of
harsh penalties on defendants who were unaware they were
violating the law supports the inference that Congress did not
intend to create a strict liability public welfare offense.
20
Contrary to the dissent’s suggestion, Dissent at 64–65, Judge (now
Justice) Kavanaugh, in dissenting in United States v. Burwell, chose not
to address the question of “how the presumption [of mens rea] applies to
a fact that Congress made a sentencing factor but that must be treated as
an element of the offense for Fifth and Sixth Amendment purposes.”
690 F.3d 500
, 540 n.13 (D.C. Cir. 2012) (en banc) (Kavanaugh, J.,
dissenting).
34 UNITED STATES V. COLLAZO
Staples,
511 U.S. at 618
. Such a concern is not implicated in
§ 841, under which the defendant must be found guilty of
knowingly or intentionally distributing controlled substances.
Once a defendant knowingly or intentionally violates federal
law, “it is not unusual to punish individuals for the
unintended consequences of their unlawful acts.” Dean,
556 U.S. at 575
(emphasis in original). The severity of a
penalty need not be “precisely calibrated to the level of mens
rea.” Burwell, 690 F.3d at 510 (citing Dean,
556 U.S. at 575
).
Because the statutory language is not ambiguous, the
other tools of statutory construction are unnecessary here. In
any event, they do not conflict with our conclusion. First,
defendants claim that the rule of lenity supports imposing
mens rea requirements for the drug types and quantities in
§ 841(b). We disagree. The rule of lenity “applies only
when, after consulting traditional canons of statutory
construction, we are left with an ambiguous statute.” Shular
v. United States,
140 S. Ct. 779
, 787 (2020) (quotation
omitted). “To invoke the rule, we must conclude that there is
a grievous ambiguity or uncertainty in the statute.” Dean,
556 U.S. at
577 (citing Muscarello,
524 U.S. at
138–39).
Given the statutory text and structure of § 841(b), it is clear
the provision does not contain an intent requirement and the
defendants’ “contrary arguments are not enough to render the
statute grievously ambiguous.” Id.
Nor does the canon of constitutional avoidance require us
to interpret § 841 as imposing a mens rea requirement for the
drug type and quantity in order to avoid conflicting with the
Due Process Clause and the Sixth Amendment. Congress’s
decision not to impose a mens rea requirement is consistent
with the Due Process Clause. That “the government must
UNITED STATES V. COLLAZO 35
prove that the defendant knew he was importing some
amount of a controlled substance . . . is sufficient to ensure
the statute penalizes only culpable conduct.” United States v.
Jefferson,
791 F.3d 1013
, 1018 (9th Cir. 2015). Similarly, the
Sixth Amendment is not implicated, because the government
is required to prove drug type and quantity to the jury beyond
a reasonable doubt. See Buckland,
289 F.3d at 568
. Apprendi
and Alleyne do not affect the question whether the word
“knowingly” applies to the drug types and quantities set out
in § 841(b). The dissent’s argument to the contrary, Dissent
at 54, “confuses the requisite burden of proof with the mens
rea standard.” Jefferson, 791 F.3d at 1017 (citing Dado,
759 F.3d at 570). We comply with the constitutional mandate
announced in Apprendi and Alleyne by requiring drug type
and quantity under § 841(b) to be found by a jury beyond a
reasonable doubt. See Buckland,
289 F.3d at 568
.
Nor is recourse to legislative history necessary here.
Where there is settled precedent on the interpretation of a
statute, “we presume that when Congress reenacted the same
language” in subsequent acts, “it adopted the earlier judicial
construction of that phrase.” Helsinn Healthcare S.A. v. Teva
Pharm. USA, Inc.,
139 S. Ct. 628
, 633–34 (2019). The
judicial consensus that the government need not prove that
the defendant “knowingly or intentionally” distributed a
particular drug type and quantity has long been settled, see
infra at 36 & n.21, and was not affected by the decisions in
Apprendi or Alleyne. Indeed, Congress has amended § 841
six times since Apprendi was decided (once since Alleyne),
without altering the statutory framework. Cf. Rehaif,
139 S. Ct. at 2199
(there had been “no definitive judicial consensus”
as to whether a defendant’s knowledge of his status was
required under § 922(g), and Congress responded to the open
question by amending the statute to include such an intent
36 UNITED STATES V. COLLAZO
requirement). Accordingly, the structure of § 841(a)–(b)
compels the conclusion that Congress did not intend to
require the government to prove a defendant’s knowledge
with respect to the drug type or quantity.
Our analysis is consistent with our prior opinions, which
concluded that no intent requirement applies to drug types
and quantities under § 841. See United States v. Soto-Zuniga,
837 F.3d 992
, 1005 (9th Cir. 2016); see also Jefferson,
791 F.3d at 1015. In Jefferson, on which Soto-Zuniga relied,
we interpreted
21 U.S.C. § 960
(a) and (b), which are
substantially identical to § 841(a) and (b), and concluded that
the government did not have “to prove that the defendant
knew the type or quantity of the controlled substance he
imported to obtain a conviction under § 960(a), or for the
penalties under § 960(b) to apply.” 791 F.3d at 1015
(citations omitted). We subsequently confirmed that this
interpretation applies to § 841(a) and (b). See Soto-Zuniga,
837 F.3d at 1005. In reaching this conclusion, we joined
every other circuit to consider this issue; all have held that
§ 841(b)(1) does not require a finding of a defendant’s mens
rea with respect to the drug type and quantity. 21
21
United States v. Collazo-Aponte,
281 F.3d 320
, 326 (1st Cir. 2002);
United States v. Andino,
627 F.3d 41
, 45–47 (2d Cir. 2010); United States
v. Barbosa,
271 F.3d 438
, 458 (3d Cir. 2001); United States v. Brower,
336 F.3d 274
, 277 (4th Cir. 2003); United States v. Betancourt,
586 F.3d 303
, 308–09 (5th Cir. 2009); Dado, 759 F.3d at 569–70; United States v.
Carrera,
259 F.3d 818
, 830 (7th Cir. 2001); United States v. Ramos,
814 F.3d 910
, 915–17 (8th Cir. 2016); United States v. De La Torre,
599 F.3d 1198
, 1204 (10th Cir. 2010); United States v. Sanders,
668 F.3d 1298
, 1310 (11th Cir. 2012); United States v. Branham,
515 F.3d 1268
,
1275–76 (D.C. Cir. 2008).
UNITED STATES V. COLLAZO 37
In sum, we conclude that in order to obtain a particular
sentence under § 841(b)(1)(A)(viii) and § 841(b)(1)(B)(i) for
a violation of § 841(a), the government must prove beyond a
reasonable doubt the specific type and the quantity of
substance involved in the offense, but not the defendant’s
knowledge of (or intent) with respect to that type and
quantity.
III
We have established in Section II.A, supra, that to convict
the defendants of conspiracy under § 846 in this case, the
government must prove beyond a reasonable doubt that each
defendant agreed with another person that some member of
the conspiracy would commit a § 841(a) offense, and that
each defendant had the requisite intent necessary for a
§ 841(a) conviction. We have also established in Section II.B,
supra, that the requisite intent necessary for a § 841(a)
conviction (and for the imposition of the penalties specified
in § 841(b)(1)(A)–(B)) does not include knowledge of the
relevant drug type or quantity. This concludes our
explication of the elements of a § 846 conspiracy to commit
a violation of § 841(a), and the imposition of penalties under
§ 841(b)(1). We now turn to defendants’ further arguments,
and clarify that a conviction under § 846 does not require
proof of a level of criminal intent greater than that required
for the underlying offense merely because it is a conspiracy
conviction.
A
The Supreme Court addressed the question whether a
conspiracy conviction required a heightened mens rea in
Feola. In that case, a defendant had been charged with
38 UNITED STATES V. COLLAZO
conspiracy (under the general federal conspiracy statute,
18 U.S.C. § 371
) to assault a federal official in violation of
18 U.S.C. § 111
(a)(1). See Feola,
420 U.S. at
672–73. The
Court first determined that the underlying substantive offense
did not require proof that the defendant intended “to assault
a federal officer,” rather, the government had to prove only
that the defendant intended to assault someone.
Id. at 684
.
The Court then considered “whether the rule should be
different where persons conspire to commit” such an assault,
id. at 686
, and concluded that it should not, see
id.
at 686–96.
In so holding, the Court stated the general rule “that where
knowledge of the facts giving rise to federal jurisdiction is
not necessary for conviction of a substantive offense
embodying a mens rea requirement, such knowledge is
equally irrelevant to questions of responsibility for conspiracy
to commit that offense.”
Id. at 696
.
In reaching this conclusion, Feola first considered
whether the text of the conspiracy statute required proof of a
greater intent than the intent required for the underlying
offense. It concluded that § 371 (the conspiracy statute at
issue) “offers no textual support for the proposition that” a
defendant who agreed to assault an individual must have
knowledge as to the employment status of the victim. Id. at
687.
Second, Feola concluded that “it is clear that one may be
guilty as a conspirator for acts the precise details of which
one does not know at the time of the agreement.” Id. at 692;
see also id. at 694 (explaining the common law principle that
“conspiracy is an inchoate crime,” which means that the
agreement is, by definition, undeveloped). Feola therefore
rejected the defendant’s argument “that it is improper to find
conspiratorial liability where the parties to the illicit
UNITED STATES V. COLLAZO 39
agreement were not aware of” all the elements of the
underlying offense “because the essence of conspiracy is
agreement and persons cannot be punished for acts beyond
the scope of their agreement.” 420 U.S. at 692.
Third, Feola established the general principle that where
an element of the underlying substantive offense does not
include an intent requirement, the same will be true for a
conspiracy to commit that offense, “unless one of the policies
behind the imposition of conspiratorial liability is not served”
by having the same intent. Id. at 693. According to the
Court, the “two independent values served by the law of
conspiracy” are: (1) “protection of society from the dangers
of concerted criminal activity;” and (2) “intervention of the
criminal law” at a “point in the continuum between
preparation and consummation” of a criminal act when “the
likelihood of a commission of an act is sufficiently great and
the criminal intent sufficiently well formed.” Id. at 693–94.
When applying this principle, the central question is whether
the act of agreeing with another person that some member of
the conspiracy will commit a crime is as blameworthy and
dangerous to society as the act of the lone criminal who
actually commits that same crime. If the agreement and the
commission are equally opprobrious, the conspirator and the
person who commits the act should be held to the same
standard, at least with respect to intent. See id. In the federal
assault statute at issue in Feola, knowledge of the victim’s
identity was not necessary for conviction of the substantive
offense, and thus was “equally irrelevant to questions of
responsibility for conspiracy to commit that offense.” Id.
at 696. Therefore, “its imposition . . . would serve only to
make it more difficult to obtain convictions on charges of
conspiracy, a policy with no apparent purpose.” Id. at 694.
40 UNITED STATES V. COLLAZO
Although Feola stated its specific holding in terms of
“facts giving rise to federal jurisdiction,” id. at 696, its
framework for determining whether the intent requirement for
a conspiracy count is “greater than” the intent required for the
underlying substantive offense, id. at 686, is generally
applicable. First, Feola did not limit its analysis to
jurisdictional facts it deemed extraneous to “the offense
Congress intended to describe and to punish.” Id. at 676 n.9.
To the contrary, Feola stated that labeling a requirement as
“jurisdictional” does not mean the requirement “is viewed as
outside the scope of the evil Congress intended to forestall.”
Id. In the case before it, Feola deemed the status of the
victim as a federal agent to be a significant component of the
assault offense under § 111 because Congress sought “to
protect the integrity of federal functions and the safety of
federal officers.” Id. Given that the element of the assault
offense regarding the victim’s status is not merely
jurisdictional, Feola’s analysis readily applies to other
elements of an offense.
Second, we have previously reached the conclusion that
“the rule of Feola” is a general one that requires “the same
degree of intent for the conspiracy charge as is required by
the underlying statute.” United States v. Thomas,
887 F.2d 1341
, 1347 (9th Cir. 1989); see United States v. Hubbard,
96 F.3d 1223
, 1229 (9th Cir. 1996) (citing Feola,
420 U.S. at 696
) (holding that “a federal conspiracy conviction does
not require a greater level of criminal intent than a conviction
on the substantive count”). We have applied this general rule
to contexts involving facts that were not jurisdictional. For
instance, we held that when a person was charged with
conspiracy to receive stolen explosives, the government did
not have to prove the person knew the dynamite was stolen,
but only that the person had “reasonable cause to believe”
UNITED STATES V. COLLAZO 41
that fact, which was the same degree of scienter required by
the underlying offense. United States v. Karr,
742 F.2d 493
,
497 (9th Cir. 1984); see also Thomas,
887 F.2d at 1347
(explaining the ruling in Karr). Similarly, in United States v.
Baker, we held that if a conviction of a violation of a federal
statute does not require proof of an intent to violate that law,
“neither does a conviction for conspiring to engage in
activities which violate” that law.
63 F.3d 1478
, 1493 (9th
Cir. 1995).22
B
We apply Feola’s general rule here. Adhering to Feola’s
analytical framework, we first start by examining the plain
language of the conspiracy statute,
21 U.S.C. § 846
. Like the
general conspiracy statute, § 846 “offers no textual support”
for the proposition that a defendant must possess a degree of
intent as to the type and quantity of drug involved in the
underlying offense.23 Rather, § 846’s requirement that a
22
The Eleventh Circuit has likewise applied Feola outside the context
of jurisdictional facts. See, e.g., United States v. Whyte,
928 F.3d 1317
,
1332 (11th Cir. 2019) (relying on Feola for the proposition that where the
“offense of sex trafficking of a minor does not require knowledge of the
victim’s status as a minor,” then the conspirator “cannot import such a
requirement into her conspiracy offense.”); see also United States v.
Duran,
596 F.3d 1283
, 1296 (11th Cir. 2010) (holding that where a
defendant has been charged with conspiracy to act as an agent of a foreign
government without providing the required notification, the government
does not have to prove the defendant knew of the notification requirement
when the underlying substantive offense does not require proof of such
knowledge).
23
Compare
18 U.S.C. § 371
(“If two or more persons conspire either
to commit any offense against the United States, or to defraud the United
States, or any agency thereof in any manner or for any purpose, and one
42 UNITED STATES V. COLLAZO
conspirator “shall be subject to the same penalties as those
prescribed for the [underlying] offense” indicates that the
penalties for a § 846 offense must be “the same” as the
penalties for the underlying offense, which also suggests that
the facts triggering those penalties must be “the same.” This
undercuts the argument that Congress intended to require the
government to prove a different (and heightened) mens rea in
the conspiracy context.
Second, because “it is clear that one may be guilty as a
conspirator for acts the precise details of which one does not
know at the time of the agreement,” Feola,
420 U.S. at 692
,
the fact that a defendant (who has been convicted of
conspiracy under § 846 for an agreement to violate § 841(a))
may not have known about certain details regarding drug type
and quantity does not preclude subjecting that defendant to a
statutory penalty based on those unknown details. Therefore,
we reject the defendants’ argument that conspirators who
agree to distribute controlled substances cannot be punished
unless they knew the specific drug type and amount to be
distributed.
Defendants argue that the Supreme Court revived this
argument in Ocasio by referencing the “long-recognized
principle[] of conspiracy law” that “the fundamental
characteristic of a conspiracy is a joint commitment to an
‘endeavor which, if completed, would satisfy all of the
or more of such persons do any act to effect the object of the conspiracy,
each shall be fined under this title or imprisoned not more than five years,
or both.”), with
21 U.S.C. § 846
(“Any person who attempts or conspires
to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of
which was the object of the attempt or conspiracy.”).
UNITED STATES V. COLLAZO 43
elements of the underlying substantive criminal offense.’”
136 S. Ct. at 1429
(alteration adopted) (quoting Salinas,
522 U.S. at 65
). We disagree. Ocasio did not consider the
specific question raised in Feola, let alone overrule Feola’s
general rule. In fact, Ocasio never cited Feola. Because
Ocasio merely recites a general common law principle
without discussing how it applies in the context of
determining a conspirator’s intent, we are bound by Feola’s
specific direction.24
Last, as indicated in Feola, we consider whether requiring
the same mens rea for a § 846 conspiracy as for the
underlying offense would fail to serve the values of
protecting society from “the dangers of concerted criminal
activity” or intervening in a criminal agreement before the
criminal act took place. Feola,
420 U.S. at 693
. As the Court
held in Feola, we conclude that the offense of conspiracy to
distribute a controlled substance is as “opprobrious” and
dangerous to society as the act of the individual drug dealer
who actually distributes the controlled substance.
Id.
Because the acts are equally blameworthy, and the person
who commits the underlying act need not know drug type and
24
For the same reason, we reject the views of the Fifth Circuit in
United States v. Anderson,
932 F.3d 344
, 352 (5th Cir. 2019). In
Anderson, the Fifth Circuit held that where a person has been charged with
conspiracy to receive money obtained from extortion, the government
must prove that the conspirator knew the money was the proceeds of
extortion, even though the underlying substantive offense does not require
proof of such knowledge.
Id.
Citing Ocasio, the Fifth Circuit reasoned
that the “mens rea for conspiracy is distinct and more demanding” than for
the underlying substantive count because the government must prove that
the defendant agreed that some member of the conspiracy would commit
every element of the offense.
Id.
The Fifth Circuit stands alone with this
approach. Because it fails to mention, let alone distinguish, Feola, which
rejected a similar argument, we decline to follow it.
44 UNITED STATES V. COLLAZO
quantity, that knowledge “is equally irrelevant to questions of
responsibility for conspiracy to commit that offense.”
Id. at 696
. Moreover, as was the case in Feola, the imposition of
an additional burden on the government to prove the
conspirator’s knowledge of drug type and quantity “would
serve only to make it more difficult to obtain convictions on
charges of conspiracy, a policy with no apparent purpose.”
Id. at 694
.
Accordingly, we conclude that to obtain a conviction and
a particular sentence for conspiracy to distribute controlled
substances under § 846, the government must prove only that
the defendant’s mental state was the same as if the defendant
had been charged with the underlying offense. Applying that
principle here, the government need not prove the defendant’s
knowledge of the drug type and quantity under § 841(b).
IV
While our conclusion is grounded in the text of the statute
and principles of conspiracy law, it is markedly different
from how we have previously characterized the framework
for determining drug type and quantity when a defendant is
charged under § 846 or § 841.25 We briefly explain why our
prior approach, which heavily relied on the formulation in the
Guidelines, was mistaken.
The Guidelines provides detailed advisory guidance to
federal judges in determining the sentencing range for a
convicted defendant. “As a matter of administration and to
secure nationwide consistency, the Guidelines should be the
starting point and the initial benchmark” for all sentencing.
25
This was the crux of the dispute between the parties.
UNITED STATES V. COLLAZO 45
Gall v. United States,
552 U.S. 38
, 49 (2007). But we do not
defer to the Guidelines when interpreting criminal statutes.
See United States v. Morales,
590 F.3d 1049
, 1052 (9th Cir.
2010) (“Of course, the [Sentencing] Commission can’t tell
federal courts how to interpret statutes.”). Therefore, while
the relevant sections of the Guidelines guide a court’s post-
conviction sentencing determinations, we may not rely on
them when determining what is required for a conviction and
statutory sentence.
Under the Guidelines, after a defendant has been
convicted for violating § 846 or § 841, a district court must
refer to Chapter Two, Part D of the Guidelines, “Offenses
involving Drugs.” See U.S.S.G. § 2D (2018). For a drug
trafficking offense, including conspiracy to commit such an
offense, the Guidelines specifies more than one base offense
level (depending on drug type and quantity, among other
things) and identifies several specific offense characteristics
that can affect the offense level.26 See U.S.S.G. § 2D1.1
(2018). To determine the appropriate offense level for any
given defendant, the Guidelines directs courts to consider
certain “relevant conduct.” See U.S.S.G. §§ 1B1.2(b) &
1B1.3 (2018). The Guidelines defines the term “relevant
conduct” to mean:
in the case of a jointly undertaken criminal
activity (a criminal plan, scheme, endeavor, or
enterprise undertaken by the defendant in
concert with others, whether or not charged as
26
For example, an offense level is increased by two levels when “the
object of the offense was the distribution of a controlled substance in a
prison, correctional facility, or detention facility.” U.S.S.G.§ 2D1.1(b)(4)
(2018).
46 UNITED STATES V. COLLAZO
a conspiracy), all acts and omissions of others
that were—
(i) within the scope of the jointly
undertaken criminal activity,
(ii) in furtherance of that criminal activity,
and
(iii) reasonably foreseeable in
connection with that criminal activity;
that occurred during the commission of the
offense of conviction, in preparation for that
offense, or in the course of attempting to
avoid detection or responsibility for that
offense.
U.S.S.G. § 1B1.3(a)(1)(B) (2018).27 Although § 1B1.3(a)
limits a defendant’s accountability for sentencing purposes,
the application notes to § 1B1.3 acknowledge that the
Guidelines does not purport to establish standards of criminal
liability. See U.S.S.G. § 1B1.3, cmt. n.1 (2018).
27
The meaning of the term “relevant conduct” in the context of a
jointly undertaken criminal activity has changed over the years. For
example, in 1991, the term “relevant conduct” included “all acts and
omissions . . . for which the defendant would be otherwise accountable,”
U.S.S.G. § 1B1.3(a)(1) (1991), and the application notes explained that
the “[c]onduct for which the defendant ‘would be otherwise accountable’
. . . includes conduct of others in furtherance of the execution of the
jointly-undertaken criminal activity that was reasonably foreseeable by the
defendant,” U.S.S.G. § 1B1.3, cmt. n.1 (1991). The Guidelines did not
include the “within the scope” requirement until 2015. See U.S.S.G.
§ 1B1.3(a)(1)(B) (2015).
UNITED STATES V. COLLAZO 47
Under the “relevant conduct” standard, a defendant’s
offense level is determined based on the conduct of
coconspirators only if the conduct falls “within the scope of
the jointly undertaken criminal activity,” is committed “in
furtherance of that criminal activity,” and is “reasonably
foreseeable in connection with that criminal activity.”28
U.S.S.G. § 1B1.3, cmt. n.3(A) (2018). The Guidelines
apparently borrowed this standard from Pinkerton, which
limits a defendant’s liability for substantive offenses
committed by coconspirators to include only those acts that
were “done in furtherance of the conspiracy,” fell “within the
scope of the unlawful project,” and were “part of the
ramifications of the plan” which could be “reasonably
foreseen as a necessary or natural consequence of the
unlawful agreement.” Pinkerton,
328 U.S. at
647–48. But
Pinkerton clearly distinguishes between conspiracy and a
substantive offense, see
328 U.S. at 643
, while the Guidelines
does not. Rather, the Guidelines adopts Pinkerton’s rule of
coconspirator liability and applies it “in the case of a jointly
undertaken criminal activity . . . whether or not charged as a
conspiracy.” U.S.S.G. § 1B1.3(a)(1)(B) (2018); see also
U.S.S.G. § 1B1.3, cmt. n.1 (1991) (same).
Perhaps due to the fact that Congress originally made the
Guidelines “mandatory and binding on all judges,” United
States v. Booker,
543 U.S. 220
, 233 (2005), we failed to make
a distinction between the Guidelines and the sentencing
factors set forth in § 841(b). The misstep dates back to
United States v. Becerra, which involved a challenge to the
district court’s imposition of 20-year sentences on two
28
Such a sentencing determination must be supported by a
preponderance of the evidence. See United States v. Perez,
962 F.3d 420
,
448 (9th Cir. 2020).
48 UNITED STATES V. COLLAZO
defendants who had been part of a conspiracy to sell
narcotics. See
992 F.2d 960
, 966 (9th Cir. 1993). The
defendants argued that the sentence was erroneous because
the transaction, which had involved 25 kilograms of cocaine,
was neither reasonably foreseeable nor within the scope of
the conspiracy.
Id.
Relying on the 1991 version of the
Guidelines, which provided that “each conspirator may be
sentenced only for the quantity of drugs that he reasonably
foresaw would be distributed or that fell within the scope of
his own agreement with his co-conspirators,” Becerra upheld
one defendant’s sentence and reversed the other’s.
Id.
at
966–67. Becerra noted, in a footnote, that this mandatory
standard would apply with equal force to
21 U.S.C. § 841
(b).
See
id.
at 967 n.2 (“We see no reason why sentencing under
the statutory mandatory minimums should differ [from
sentencing under the Guidelines, because the statutory
minimums] are, in essence, part of the Guidelines scheme.”).
Following Becerra, we interpreted § 841 as if it directly
incorporated the standard adopted by the Guidelines. See
United States v. Banuelos,
322 F.3d 700
, 704 (9th Cir. 2003).
Banuelos held that in order to subject a conspirator to a
mandatory minimum or statutory maximum sentence under
§ 841(b), the type and quantity of the substance involved in
the conspiracy must either have fallen “within the scope of
the defendant’s agreement with his coconspirators” or have
been “reasonably foreseeable to the defendant.” Id.
Our error in Becerra and Banuelos was the failure to
recognize that the rule of coconspirator liability for
substantive offenses in Pinkerton, which was incorporated
into the Guidelines and applied regardless of whether the
charge was conspiracy or a substantive offense, does not
apply to the liability determination for a § 846 conspiracy
offense. As a result of this error, our cases mistakenly
UNITED STATES V. COLLAZO 49
focused on the question whether we should adjust our
interpretation of § 846 and § 841(b) in accordance with the
Guidelines’ shifting formulation, rather than whether that
formulation is applicable at all. See United States v. Torres,
869 F.3d 1089
, 1095–1100 (9th Cir. 2017) (Ikuta, J., specially
concurring).
We now overrule Becerra and its progeny to the extent
they depart from our decision today. Because Pinkerton
addresses when a defendant can be liable for substantive
offenses committed by coconspirators, it is irrelevant to a
defendant’s liability for conspiracy. To the extent § 1B1.3 or
other applicable Guidelines provisions incorporate Pinkerton,
they cannot guide our statutory analysis when the defendants
are charged only with conspiracy.
In reaching this conclusion, we join the well reasoned
opinion of the Sixth Circuit, which is grounded in the text of
the statute. See United States v. Robinson,
547 F.3d 632
(6th
Cir. 2008). We note our departure from the other circuits,
which have largely made errors that echo our own.29 Some
circuits rely on Pinkerton without acknowledging the
29
See United States v. Pizarro,
772 F.3d 284
(1st Cir. 2014); United
States v. Martinez,
987 F.2d 920
(2d Cir. 1993); United States v. Phillips,
349 F.3d 138
(3d Cir. 2003), vacated on other grounds, Barbour v. United
States,
543 U.S. 1102
(2005); United States v. Collins,
415 F.3d 304
(4th
Cir. 2005); United States v. Haines,
803 F.3d 713
(5th Cir. 2015); United
States v. Seymour,
519 F.3d 700
(7th Cir. 2008); United States v. Littrell,
439 F.3d 875
(8th Cir. 2006); United States v. Ellis,
868 F.3d 1155
(10th
Cir. 2017); United States v. Stoddard,
892 F.3d 1203
(D.C. Cir. 2018).
50 UNITED STATES V. COLLAZO
difference between conspiracy and the substantive offense.30
See, e.g., Stoddard, 892 F.3d at 1221. Other circuits rely on
the Guidelines. See, e.g., Haines, 803 F.3d at 740; United
States v. Irvin,
2 F.3d 72
, 77 (4th Cir. 1993). And it appears
that two circuits have adopted one approach for mandatory
minimum sentences and a different approach for statutory
maximum sentences. See Pizarro, 772 F.3d at 292–93;
Haines, 803 F.3d at 741–42. For the reasons explained
above, we are not persuaded by the reasoning of those circuits
that have relied on Pinkerton, the Guidelines, or both.
Even though the Guidelines does not impact our
interpretation of the statute, the Guidelines works with the
statute to ensure that a defendant is not exposed to unlimited
liability. Once a defendant is convicted and the statutory
sentencing range is established by the jury’s factual findings,
the district court must follow the Guidelines, which will
establish a fair sentence based on an individualized
assessment of accountability. “Under the Guidelines each
conspirator, for sentencing purposes, is to be judged not on
the distribution made by the entire conspiracy but on the basis
of the quantity of drugs which he reasonably foresaw or
which fell within ‘the scope’ of his particular agreement with
the conspirators.” United States v. Petty,
992 F.2d 887
, 890
(9th Cir. 1993).
30
The Fourth Circuit concedes that “[t]he principles outlined in
Pinkerton” do not apply to conspiracy under § 846, but it nevertheless
requires a jury to be instructed in Pinkerton principles when determining
the substance type and quantity involved in a conspiracy. Collins,
415 F.3d at 313, 314
.
UNITED STATES V. COLLAZO 51
V
We now apply our approach to the case on appeal. Each
defendant was indicted for conspiracy under § 846 to
distribute controlled substances in violation of § 841(a)(1).
At trial, the jury was instructed that if it found the
defendant guilty of the conspiracy charge, it had to determine
“whether the government proved beyond a reasonable doubt
that the amount of [the specified drug] that was reasonably
foreseeable to him or fell within the scope of his particular
agreement equaled or exceeded” a specified amount.
Although the district court was not at fault in attempting to
rely on our confusing precedent, we now conclude that this
instruction was erroneous. As we have explained, a
defendant convicted of conspiracy under § 846 is subject to
a penalty under § 841(b)(1)(A)–(B) if the government has
proven beyond a reasonable doubt that the underlying
§ 841(a)(1) offense involved the drug type and quantity set
forth in § 841(b)(1)(A)–(B). The government does not have
to prove that the defendant had any knowledge or intent with
respect to those facts.
A jury instruction misstating the law is subject to
harmless error review. United States v. Conti,
804 F.3d 977
,
980 (9th Cir. 2015). An erroneous jury instruction will be
deemed harmless if the “reviewing court concludes beyond a
reasonable doubt that the omitted [or misstated] element was
uncontested and supported by overwhelming evidence, such
that the jury verdict would have been the same absent the
error.” Neder v. United States,
527 U.S. 1
, 17 (1999). In this
case, the erroneous jury instructions could amount to
harmless error if there was overwhelming evidence that each
52 UNITED STATES V. COLLAZO
defendant entered into an agreement involving the requisite
drug type and quantity.
To safeguard a criminal defendant’s Sixth Amendment
guarantee to a jury trial, the reviewing court must “conduct a
thorough examination of the record.”
Id. at 19
. Given the
numerous issues raised on appeal and the extensive record
from the ten-day jury trial, we find it appropriate to return
this case to the three-judge panel to reconsider both the
harmless error issue and the balance of the issues raised by
the parties in light of this opinion, and to enter an appropriate
judgment.31 See, e.g., Gonzalez Batoon v. INS,
791 F.2d 681
,
686 (9th Cir. 1986) (en banc).
REMANDED to the three-judge panel.
W. FLETCHER, Circuit Judge, with whom THOMAS, Chief
Circuit Judge, and NGUYEN, WATFORD, and HURWITZ,
Circuit Judges, join, dissenting:
Under
21 U.S.C. § 841
(a)(1), it is illegal for a person
“knowingly or intentionally” to “possess with intent to . . .
distribute . . . a controlled substance.” It has long been the
law in this circuit that “a defendant who has knowledge that
he possesses a controlled substance may have the state of
mind necessary for conviction even if he does not know
31
We also leave for the panel the issue of whether the erroneous jury
instruction should be reviewed for plain error with respect to Delgado-
Vidaca and Ballesteros, given that Delgado-Vidaca did not expressly join
the objection at trial, and that Ballesteros did not raise the issue on appeal
in either his opening or reply brief.
UNITED STATES V. COLLAZO 53
which controlled substance he possesses.” United States v.
Jewell,
532 F.2d 697
, 698 (9th Cir. 1976) (en banc); see also
McFadden v. United States,
576 U.S. 186
, 192 (2015) (“The
ordinary meaning of § 841(a) . . . requires a defendant to
know only that the substance he is dealing with is some
unspecified substance listed on the federal drug schedules.”).
In general, if the offense involves a Schedule I or Schedule II
controlled substance (absent aggravating circumstances not
at issue here), the defendant may upon conviction receive a
sentence of “not more than twenty years.”
21 U.S.C. § 841
(b)(1)(C). In such a case, there is no mandatory
minimum sentence.
Id.
For eight specified Schedule I and II controlled
substances, however, §§ 841(b)(1)(A) and (b)(1)(B) provide
for mandatory minimum sentences that differ depending on
the particular substance and quantity. For example, if a
defendant distributes 50 or more grams of methamphetamine,
the mandatory minimum sentence is ten years and the
permissible maximum sentence is life. See id.
§ 841(b)(1)(A)(viii). If a defendant distributes 100 or more
grams of a substance containing a detectable amount of
heroin, the mandatory minimum sentence is five years and the
permissible maximum sentence is forty years. See id.
§ 841(b)(1)(B)(i). If death or bodily injury results from the
distribution, the mandatory minimum sentence under both
§§ 841(b)(1)(A) and (b)(1)(B) is twenty years.
The defendants in this case were charged with conspiring,
in violation of
21 U.S.C. § 846
, to distribute 50 grams or
more of methamphetamine and 100 grams or more of a
substance containing a detectable amount of heroin, in
violation of §§ 841(a)(1), 841(b)(1)(A)(viii) and (b)(1)(B)(i).
According to the majority, once the government proves
54 UNITED STATES V. COLLAZO
beyond a reasonable doubt that a defendant knowingly or
intentionally distributed a controlled substance, and that
substance turns out to be one of the eight controlled
substances in an amount specified by §§ 841(b)(1)(A) and
(b)(1)(B), a mandatory minimum and enhanced maximum
sentence automatically apply. The sentences for a violation
of § 841(a)(1) are thus dramatically and mandatorily
increased in the absence of any mens rea as to drug type and
amount. I respectfully disagree.
Any crime whose penalty is increased by law based on a
specified fact is an “aggravated crime.” Alleyne v. United
States,
570 U.S. 90
, 113 (2013). “Any fact that, by law,
increases the penalty for a crime is an ‘element’” of the
crime.
Id. at 103
; see also Apprendi v. New Jersey,
530 U.S. 466
(2000). Any such fact must be submitted to the jury and
proved beyond a reasonable doubt. Alleyne, 570 U.S. at 116.
There is a strong presumption that Congress intends to
require a culpable mens rea as to every element of a crime.
See, e.g., Rehaif v. United States,
139 S. Ct. 2191
, 2195
(2019); Flores-Figueroa v. United States,
556 U.S. 646
, 650
(2009). Applying that presumption, I would hold that when
the government seeks enhanced penalties under
§§ 841(b)(1)(A) or (b)(1)(B)—specifically, the mandatory
minimums and increased statutory maximums that do not
exist for Schedule I or II drug violations charged under
§ 841(b)(1)(C)—it must prove the defendant “knowingly or
intentionally” distributed the actual controlled substance and
quantity charged under §§ 841(b)(1)(A) or (b)(1)(B).
I. Presumption of Mens Rea
“[T]he existence of a mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal
UNITED STATES V. COLLAZO 55
jurisprudence.” United States v. United States Gypsum Co.,
438 U.S. 422
, 436 (1978) (internal quotation marks omitted).
William Blackstone wrote that it is “absurd” to apply the
same punishment to “crimes of different malignity.”
4 William Blackstone, Commentaries on the Laws of England
17 (1769). In the leading nineteenth-century treatise, Joel
Prentiss Bishop wrote that punishment requires concurrence
between mens rea and the wrong inflicted because “the evil
intended is the measure of a man’s desert of punishment.”
1 Joel Prentiss Bishop, Commentaries on the Criminal Law
§ 334 (7th ed. 1882). Justice Robert Jackson wrote in
Morissette v. United States that the relation between mens rea
and punishment is “almost as instinctive as the child’s
familiar exculpatory ‘But I didn’t mean to.’”
342 U.S. 246
,
251 (1952).
The presumption of mens rea reinforces other
foundational principles of criminal law. First, a person’s
mistake of fact ordinarily mitigates guilt and resulting
punishment. As Justice Jackson wrote, the law often
recognizes “good faith or blameless intent as a defense,
partial defense, or as an element to be considered in
mitigation of punishment.”
Id. at 265
. Second, a person
should have fair notice as to the likely consequences of
voluntary acts. The terms in a penal statute defining an
offense “must be sufficiently explicit to inform those who are
subject to it what conduct on their part will render them liable
to its penalties.” Connally v. Gen. Const. Co.,
269 U.S. 385
,
391 (1926).
The Supreme Court has never insisted that Congress
clearly state its intention to require mens rea as part of the
definition of a crime. Indeed, in one case the Court relied on
the presumption to conclude that a mens rea is required
56 UNITED STATES V. COLLAZO
despite the complete absence of mens rea language anywhere
in the statute. See Staples v. United States,
511 U.S. 600
, 619
(1994). It necessarily follows that the presumption applies
“with equal or greater force” when Congress includes an
explicit mens rea provision. Rehaif,
139 S. Ct. at 2195
. A
severe criminal penalty makes the already strong presumption
even stronger, for the severity of the penalty is a “significant
consideration” in determining whether Congress intended to
require a mens rea. Staples,
511 U.S. at 616
; see also United
States v. X-Citement Video, Inc.,
513 U.S. 64
, 72 (1994)
(pointing to the harsh penalty as a reason to apply the
presumption). The presumption is overridden only if
Congress makes plain that it intends to forego a mens rea
requirement. Rehaif,
139 S. Ct. at 2195
.
There are two exceptions to the presumption of mens rea,
neither of which applies in the case before us. First, there is
an exception for “public welfare” offenses. See
id. at 2197
.
The public welfare exception applies only to statutes that
provide for “light penalties such as fines or short jail
sentences,” Staples,
511 U.S. at 616
, or where “conviction
does no grave damage to an offender’s reputation,”
Morissette, 246 U.S. at 342. Second, mens rea is not required
for a jurisdictional element of a crime, such as a requirement
that a firearm traveled in interstate commerce, because such
elements have no bearing on the wrongfulness of a
defendant’s conduct. Rehaif,
139 S. Ct. at 2196
.
There is a strong presumption that a mens rea requirement
exists for all elements of a crime. See
id.
at 2195 (citing
Model Penal Code § 2.02(4), (Am. L. Inst. 1985) (when a
statute prescribes a level of culpability, it applies to “all the
material elements of the offense, unless a contrary purpose
UNITED STATES V. COLLAZO 57
plainly appears”)). In two cases, the Supreme Court has
explained what constitutes an “element.”
In Apprendi, the Court held that a fact underlying a
sentencing enhancement beyond the statutory maximum is an
element of the crime, disagreeing with New Jersey’s
contention that a fact resulting in a higher sentence was a
mere “sentencing factor.”
530 U.S. at 492
. Rather, the Court
explained, the question of whether a fact is an element of the
crime is “one not of form, but of effect.”
Id. at 494
. Courts
must ask whether the fact exposes the defendant to greater
punishment.
Id.
In Alleyne, the Court applied Apprendi to a statute
describing a “core crime” and prescribing escalating criminal
penalties depending on particular facts specified in the
statute. See 570 U.S. at 111–16. The core crime was using
or carrying a firearm in relation to a crime of violence. A
defendant who committed the core crime, without more, was
subject to a 5-year mandatory minimum. A defendant who
“brandishe[d]” the firearm in committing the core crime was
subject to a 7-year mandatory minimum. See
18 U.S.C. § 924
(c)(1)(A)(i)–(ii). The Court wrote that “facts increasing
the legally prescribed floor aggravate the punishment” and
“heighten[] the loss of liberty associated with the crime.”
Alleyne, 570 U.S. at 113 (emphasis in original). “[T]he core
crime and the fact triggering the mandatory minimum
sentence together constitute a new, aggravated crime.” Id.
According to the Court, “Any fact that, by law, increases the
penalty for a crime is an ‘element.’” Id. at 103. Any such
fact must be submitted to the jury and proved beyond a
reasonable doubt. Id. at 116.
58 UNITED STATES V. COLLAZO
To give effect to the presumption of mens rea, the Court
has been “reluctan[t] to simply follow the most grammatical
reading of [a] statute.” X-Citement Video,
513 U.S. at 70
. X-
Citement Video is a prime example of ignoring the niceties of
grammar. The statute at issue provided:
(a) Any person who—
(1) knowingly transports or ships using
any means or facility of interstate or
foreign commerce or in or affecting
interstate or foreign commerce by any
means including by computer or mails,
any visual depiction, if—
(A) the producing of such visual
depiction involves the use of a minor
engaging in sexually explicit conduct;
and
(B) such visual depiction is of such
conduct;
...
shall be punished as provided in
subsection (b) of this section.
18 U.S.C. § 2252
(a). The question was whether the mens rea
of “knowingly” required that defendants not only knew that
they were transporting or shipping a “visual depiction” of
“sexually explicit conduct,” but also required that they knew
that the depiction “involve[d] the use of a minor engaging in
[that] conduct.”
Id.
UNITED STATES V. COLLAZO 59
Our court had held in X-Citement Video that the mens rea
requirement applied only to the act of transporting the
depiction of sexually explicit conduct. United States v. X-
Citement Video, Inc.,
982 F.2d 1285
, 1289–90 (9th Cir.
1992). We had held that mens rea requirement did not
require knowledge that the depiction involved the use of a
minor. See
id. at 1292
(stating that applying mens rea to this
element would be “judicial rewriting of [the] statute”). The
Supreme Court reversed. In an opinion by Chief Justice
Rehnquist, the Court held that the knowledge mens rea
applied to both elements of the crime. The Court held that
“knowingly” modified the phrase “involves the use of a
minor,” even though the key phrase was not the phrase
directly modified by the adverb. X-Citement Video, 513 U.S.
at 68–70.
Further, the Supreme Court has allowed a considerable
distance between the words specifying the mens rea and the
words describing the element of the crime. In X-Citement
Video, the adverb “knowingly” was separated from “involves
the use of a minor” by twenty-six words. In Rehaif, the word
specifying the mens rea and the words specifying elements of
the crime were in entirely different sections of Title 18.
Section 924(a)(2) provided a penalty of up to 10 years’
imprisonment for “knowingly” engaging in acts with several
different factual predicates. The acts were identified in
§ 924(a)(2) only by cross-references to subsections in § 922.
Among the factual predicates in § 922(g) were two relevant
to the defendant: (1) that the defendant possessed a firearm,
and (2) that the defendant was an alien unlawfully in the
United States. The question was whether the government
needed to prove that a defendant charged with violating
§ 924(a)(2) knew both that he possessed a firearm and that his
status at the time of possession was as an alien unlawfully in
60 UNITED STATES V. COLLAZO
the country. The Court held that Congress intended mens rea
as to all material elements of the crime, even those in the
separate section of the statute. Rehaif,
139 S. Ct. at 2196
.
II. Aggravated Crimes under §§ 841(b)(1)(A) and
841(b)(1)(B)
Subsection 841(a)(1) criminalizes conduct with respect to
a wide range of controlled substances and quantities, with a
correspondingly wide range of penalties, as specified in
§ 841(b)(1). Subsection 841(a)(1) provides that “it shall be
unlawful for any person knowingly or intentionally to
manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute or dispense, a controlled substance.”
(Emphasis added.) The general punishment for § 841(a)(1)
violations involving Schedule I and II substances is up to
twenty years in prison, with no mandatory minimum
sentence.
21 U.S.C. § 841
(b)(1)(C).
However, §§ 841(b)(1)(A) and (b)(1)(B), when combined
with § 841(a)(1), describe “aggravated crimes” under Alleyne,
570 U.S. at 113. When a forbidden act with respect to one of
eight specific Schedule I or II controlled substances is
charged under §§ 841(b)(1)(A) or (b)(1)(B), mandatory
minimum and higher maximum sentences apply. Section
841(b)(1)(A) provides a “term of imprisonment” of “not . . .
less than 10 years or more than life . . .” for eight controlled
substances meeting or exceeding specified quantities.
Subsection 841(b)(1)(B) provides for an imprisonment term
of “not . . . less than 5 years and not more than 40 years . . .”
for the same eight substances in lesser quantities. If death or
bodily injury results from the manufacture, distribution or
dispensation, the mandatory minimum sentence under both
§§ 841(b)(1)(A) and (b)(1)(B) is increased to twenty years.
UNITED STATES V. COLLAZO 61
We are concerned in this case with two of the controlled
substances and quantities listed in §§ 841(b)(1)(A) and
(b)(1)(B). Defendants were charged with conspiring to
distribute controlled substances and quantities listed in
§ 841(b)(1)(A)(viii) (methamphetamine, a Schedule II
substance) and § 841(b)(1)(B)(i) (heroin, a Schedule I
substance).
This should be an easy case. The structure of § 841 is
clear and straightforward. Subsection 841(a)(1) prohibits
certain knowing or intentional acts with respect to controlled
substances. Subsections 841(b)(1)(A) and (b)(1)(B),
immediately following, prescribe mandatory enhanced
penalties for eight specified Schedule I and II controlled
substances in specified quantities. Under § 841(b)(1)(C),
unless death or serious bodily injury results, no mandatory
minimum applies to violations of § 841(a)(1). But under
§ 841(b)(1)(A)(viii), a sentence of not less than 10 years and
no more than life applies to an offense involving 50 grams or
more of methamphetamine. Under § 841(b)(1)(B)(i), a
sentence of not less than five years and no more than 40 years
applies to an offense involving between 100 grams or more
of a substance containing a detectable amount of heroin.
Under Alleyne, the specific controlled substance and its
quantity are elements of the aggravated crimes created by the
combination of § 841(a)(1) and §§ 841(b)(1)(A) and
(b)(1)(B). Even without the presumption that mens rea
applies to all elements of a crime, I would conclude that a
plain reading of § 841 indicates that Congress intended to
require the government to prove knowledge or intent with
respect to the controlled substances and quantities specified
in §§ 841(b)(1)(A) and (b)(1)(B). But the presumption
applies, and it reinforces the conclusion I would reach
62 UNITED STATES V. COLLAZO
independently. Indeed, the presumption applies with
particular force, given the severity of the penalties.
Despite the explicit mens rea requirement in § 841(a)(1),
despite the proximity of § 841(a)(1) to §§ 841(b)(1)(A) and
(b)(1)(B), despite the fact that type and quantity of the
controlled substances in §§ 841(b)(1)(A) and (b)(1)(B) are
elements of the crime, and despite the mandatory nature and
severity of the penalties under §§ 841(b)(1)(A) and (b)(1)(B),
the majority concludes that § 841 requires that the
government prove knowledge or intent only with respect to
a controlled substance—indeed, only with respect to any
controlled substance, not limited to the eight substances listed
in §§ 841(b)(1)(A) and (b)(1)(B). I respectfully disagree.
The majority makes several arguments in support of its
conclusion. I find none of them persuasive.
First, the majority writes that Ҥ 841(b)(1), unlike
§ 841(a), is silent as to any mens rea requirement.” Maj. Op.
at 22. It is of course true that §§ 841(b)(1)(A) and (b)(1)(B)
do not contain a mens rea requirement. The requirement is in
§ 841(a)(1). But the “silence” to which the majority refers is
a far cry from the true silence in Staples, where the statute
had no mens rea requirement whatsoever. Yet the Court in
Staples, relying on the presumption of mens rea, held that the
statute required mens rea on the part of the defendant.
Staples,
511 U.S. at 619
.
Second, the majority writes, relying on “ordinary English
grammar,” that “[t]here is no natural or ordinary way to read
the intent requirement in § 841(a)(1) as modifying the drug
types and quantities in § 841(b).” Maj. Op. at 30. But the
question before us is not centrally a grammatical question, to
UNITED STATES V. COLLAZO 63
be answered as if we were diagramming a sentence. The
question is a broader interpretive question. It is whether we
should infer Congressional intent to require mens rea when
one subsection of the statute specifies a mens rea for criminal
violations, including violations carrying mandatory sentences,
and the immediately following subsections lists the controlled
substances and quantities that require those mandatory
sentences. If that is the question, as it surely must be, it is
easy to read the statute in a “natural or ordinary way” to apply
the mens rea requirement contained in one subsection to the
criminal behavior specified in the immediately following
subsections that impose mandatory sentences.
Third, the majority argues that the “knowingly or
intentionally” mens rea in § 841(a)(1) cannot apply to
controlled substances and quantities in §§ 841(b)(1)(A) and
(b)(1)(B) because Congress explicitly provided for a mens rea
of “knowingly or intentionally” in § 841(b)(6). The majority
correctly points out “that Congress knew how to require proof
of mens rea with respect to the predicate facts for sentences
under § 841(b),” and that it did not explicitly provide that the
mens rea requirement of “knowingly or intentionally” applied
to crimes specified in § 841(b)(1)(A)–(B). Maj. Op. at 31. It
incorrectly concludes, however, that if the “knowingly or
intentionally” mens rea requirement contained in § 841(a)(1)
applies to acts described in §§ 841(b)(1)(A) and (b)(1)(B), the
identical mens rea specified in § 841(b)(6) is “surplusage.”
Id. According to the majority, “this redundancy fatally
undermines the dissent’s position.” Id.
The majority misunderstands § 841(b)(6). There are two
criminal acts specified in § 841(b)(6). It provides, “Any
person who [1] violates subsection (a) . . . , and
[2] knowingly or intentionally uses a poison, chemical or
64 UNITED STATES V. COLLAZO
other hazardous substance on Federal land . . . shall be fined
. . . or imprisoned not more than five years, or both.”
(Emphasis and bracketed numbers added.) The first criminal
act is a violation of § 841(a). As we know, § 841(a) already
contains the mens rea of “knowingly or intentionally,” and it
forbids manufacturing, distributing or dispensing controlled
substances. The second criminal act is poisoning federal
lands. It is a separate criminal act that is not forbidden by
§ 841(a). Because it is a separate criminal act as to which the
mens rea specified in § 841(a) does not apply, Congress
separately specified the mens rea of “knowingly or
intentionally” for that separate act. Far from supporting the
majority’s conclusion, § 841(b)(6) is inconsistent with it. For
the first crime specified in § 841(b)(6), the mens rea of
“knowingly or intentionally” is already provided in
§ 841(a)(1). For the second crime, mens rea is not provided
by § 841(a)(1). Section § 841(b)(6) therefore explicitly
provides that mens rea, in words that precisely replicate the
mens rea in § 841(a)(1). There is no surplusage. Rather,
there is a confirmation that the mens rea specified in
§ 841(a)(1) can apply to the crimes and mandatory penalties
specified in § 841(b)(1).
Fourth, the majority suggests that the presumption of
mens rea should apply only to acts that, absent the statute, are
“entirely innocent.” Maj. Op. at 33 (quoting Rehaif,
139 S. Ct. at 2197
). It writes, “The presumption that Congress
intended the defendant to possess a culpable mental state as
to ‘each of the statutory elements that criminalize otherwise
innocent conduct’ is particularly appropriate when a different
reading would have the effect of criminalizing ‘a broad range
of apparently innocent conduct.’”
Id.
at 27–28 (internal
citations omitted). The Supreme Court has never held that
the presumption of mens rea protects only the entirely
UNITED STATES V. COLLAZO 65
innocent. Indeed, as Justice Kavanaugh wrote while a judge
on the D.C. Circuit, it would be “illogical in the extreme” to
limit the presumption of mens rea in this way. United States
v. Burwell,
690 F.3d 500
, 529 (D.C. Cir. 2012) (en banc)
(Kavanaugh, J., dissenting).
The government has argued to the Court that the
presumption of mens rea protects only the innocent, and its
argument has been rejected. See Brief for the United States
at 33–38, Flores-Figueroa v. United States,
556 U.S. 646
(2009) (No. 08-108),
2009 WL 191837
. The government
argued in Flores-Figueroa that the word “knowingly” in
18 U.S.C. § 1028A(a)(1) did not apply to a certain element of
an aggravated identity theft crime because there was no risk
of “criminalization of any ‘apparently innocent conduct.’” Id.
at 34 (quoting Liparota v. United States,
471 U.S. 419
, 426
(1985)). But the Court refused to adopt that view.
I am, of course, aware that cases previously decided by
our court support the majority’s conclusion. See, e.g., United
States v. Soto-Zuniga,
837 F.3d 992
(9th Cir. 2016); United
States v. Jefferson,
791 F.3d 1013
(9th Cir. 2015). I believe
that these cases were wrongly decided. See Jefferson,
791 F.3d at 1019 (Fletcher, J., concurring). In recent years,
the Supreme Court has paid increasing attention to statutory
sentencing schemes. See Alleyne, 570 U.S. at 103; Harris v.
United States,
536 U.S. 545
(2002), overruled by Alleyne,
570 U.S. at 103; Apprendi,
530 U.S. 466
. Alleyne reflects a
broad concern about the unfairness of sentencing schemes in
which the facts that are legally essential to the punishment
need not be found beyond a reasonable doubt. See Alleyne,
570 U.S. at 112 (“[I]f ‘a statute prescribes a particular
punishment to be inflicted on those who commit it under
special circumstances which it mentions, or with particular
66 UNITED STATES V. COLLAZO
aggravations,’ then those special circumstances must be
specified in the indictment[.]” (quoting 1 Joel Prentiss
Bishop, Criminal Procedure § 598, at 360–61 (2d ed. 1872)).
It is a small step from Alleyne to the conclusion I would
reach in this case. The same concern about unfairness that
motivated the Court in Alleyne should lead us to the
conclusion that the mens rea requirement specified in
§ 841(a)(1) applies to the acts and mandatory penalties
specified in §§ 841(b)(1)(A) and (b)(1)(B). Congress did not
intend in § 841 to impose mandatory sentences of five, ten
and twenty years, and maximum sentences of life, based on
mistakes of fact and unintentional acts. |
4,638,836 | 2020-12-02 18:01:41.982656+00 | null | http://www.jag.navy.mil/courts/documents/archive/2020/GUZMANANAYA_2019000340_SL+EOJ.pdf | This opinion is subject to administrative correction before final disposition.
Before
CRISFIELD, HOLIFIELD, and LAWRENCE
Appellate Military Judges
_________________________
UNITED STATES
Appellee
v.
Roberto E. GUZMANANAYA
Lance Corporal (E-3), U.S. Marine Corps
Appellant
No. 201900340
Decided: 2 December 2020
Appeal from the United States Navy-Marine Corps Trial Judiciary
Military Judge:
Wilbur Lee
Sentence adjudged 3 October 2019 by a general court-martial convened at
Marine Corps Base Hawaii, Kaneohe Bay, Hawaii, consisting of a military
judge sitting alone. Sentence in the Entry of Judgment: reduction to E-1,
confinement for 10 months, 1 forfeiture of $1,120 per month for 10 months,
and a bad-conduct discharge.
For Appellant:
Major Thomas R. Fricton, USMC 2
Major Mary Claire Finnen, USMC
1 The military judge sentenced Appellant to between 6 and 10 months for each of the six
offenses to which he pleaded guilty. Pursuant to a plea agreement, the military judge ordered
that the six periods of confinement be served concurrently, for a total of 10 months.
2 The Court granted Major Fricton leave to withdraw as appellate defense counsel on 25
June 2020.
United States v. Guzmananaya, NMCCA No. 201900340
Opinion of the Court
For Appellee:
Lieutenant Commander Jeffrey S. Marden, JAGC, USN
Major Clayton L. Wiggins, USMC
_________________________
This opinion does not serve as binding precedent under
NMCCA Rule of Appellate Procedure 30.2(a).
_________________________
PER CURIAM:
After careful consideration of the record, we have determined that the approved
findings and sentence are correct in law and fact and that no error materially
prejudicial to Appellant’s substantial rights occurred. 3
However, we agree with Appellant’s sole assignment of error that the Entry of
Judgment is inaccurate, as Block 33 (pleas and findings) fails to note the words
excepted in the pleas and findings related to Specification 2 of Charge III. 4 Although
we find no prejudice from this error, Appellant is entitled to have court-martial
records that correctly reflect the content of his proceeding. 5 In accordance with this
Court’s authority under Rule for Courts-Martial 1111(c)(2), we modify the Entry of
Judgment and direct that it be included in the record. 6
The findings and sentence are AFFIRMED.
3 Uniform Code of Military Justice arts. 59, 66,
10 U.S.C. §§ 859
, 866.
4 The Entry of Judgment also contains two scrivener’s errors, referring to Charge III in
both Block 33 and Block 34 as “Charge IIII.” We will correct this, too, as we modify the Entry
of Judgment.
5 United States v. Crumpley,
49 M.J. 538
, 539 (N-M. Ct. Crim. App. 1998).
6 We also note with concern the cursory nature of the military judge’s inquiry into the
pretrial agreement’s terms. The Court of Appeals for the Armed Forces “ha[s] long empha-
sized the critical role that a military judge and counsel must play to ensure that the record
reflects a clear, shared understanding of the terms of any pretrial agreement between an
accused and the convening authority.” United States v. Williams,
60 M.J. 360
, 362 (C.A.A.F.
2004)(citations omitted). While there is nothing in the present case indicating a lack of
mutual understanding as to the agreement’s meaning, brief, non-specific inquiries such as
conducted below invite confusion and error.
2
United States v. Guzmananaya, NMCCA No. 201900340
Opinion of the Court
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
3
United States v. Guzmananaya, NMCCA No. 201900340
Modified Entry of Judgment
UNITED STATES NMCCA NO. 201900340
v. ENTRY
OF
Roberto E. GUZMANANAYA JUDGMENT
Lance Corporal (E-3)
U.S. Marine Corps As Modified on Appeal
Accused
2 December 2020
On 4 September and 2-3 October 2019, the Accused was tried at Marine Corps
Base Hawaii, Kaneohe Bay, Hawaii, by a general court-martial, consisting of a
military judge sitting alone. Military Judge Wilbur Lee, presided.
FINDINGS
The following are the Accused’s pleas and the Court’s findings to all offenses the
convening authority referred to trial:
Charge I: Violation of Article 92, Uniform Code of Military Justice,
10 U.S.C. § 892
.
Plea: Guilty.
Finding: Guilty.
Specification: Failure to obey other lawful written order between on
or about 31 July 2018 and on or about 29 August 2018.
Plea: Guilty.
Finding: Guilty.
1
United States v. Guzmananaya, NMCCA No. 201900340
Modified Entry of Judgment
Charge II: Violation of Article 120a, Uniform Code of Military Justice,
10 U.S.C. § 920a.
Plea: Not Guilty.
Finding: Dismissed.
Specification: Stalking on divers occasions between on or about
29 July 2018 and on or about 15 November 2018.
Plea: Not Guilty.
Finding: Dismissed.
Charge III: Violation of Article 128, Uniform Code of Military Justice,
10 U.S.C. § 928
.
Plea: Guilty.
Finding: Guilty.
Specification 1: Assault consummated by battery on or about
28 July 2017.
Plea: Guilty.
Finding: Guilty.
Specification 2: Assault consummated by battery on or about
29 July 2018.
Plea: Guilty, except for certain words. Of the excepted words,
Not Guilty.
Finding: Guilty of the specification as excepted; the excepted
words are Dismissed.
Specification 3: Aggravated assault on or about 29 July 2018.
Plea: Guilty.
Finding: Guilty.
Additional Charge I: Violation of Article 112a, Uniform Code of Military
Justice, 10 U.S.C. § 912a.
Plea: Not Guilty.
Finding: Dismissed.
Specification: Wrongful use of a controlled substance between on or
about 9 May 2019 and on or about 14 May 2019.
Plea: Not Guilty.
Finding: Dismissed.
2
United States v. Guzmananaya, NMCCA No. 201900340
Modified Entry of Judgment
Additional Charge II: Violation of Article 107, Uniform Code of Military
Justice,
10 U.S.C. § 907
.
Plea: Guilty.
Finding: Guilty.
Specification: Making a false official statement on or about
28 July 2017.
Plea: Guilty.
Finding: Guilty.
Additional Charge III: Violation of Article 107, Uniform Code of Military
Justice,
10 U.S.C. § 907
.
Plea: Not Guilty.
Finding: Dismissed.
Specification: Making a false official statement on or about
8 July 2019.
Plea: Not Guilty.
Finding: Dismissed.
Additional Charge IV: Violation of Article 112a, Uniform Code of Military
Justice, 10 U.S.C. § 912a.
Plea: Guilty.
Finding: Guilty.
Specification: Wrongful use of a controlled substance between on or
about 27 June 2019 and on or about 2 July 2019.
Plea: Guilty.
Finding: Guilty.
3
United States v. Guzmananaya, NMCCA No. 201900340
Modified Entry of Judgment
SENTENCE
On 3 October 2019, a military judge sentenced the Accused to the following:
A bad-conduct discharge.
Forfeiture of $1,120 pay per month for 10 months.
Reduction to pay grade E-1.
Confinement as follows:
The Specification of Charge I: 10 months.
Specification 1 of Charge III: 6 months.
Specification 2 of Charge III: 6 months.
Specification 3 of Charge III: 10 months.
The Specification of Additional Charge II: 10 months.
The Specification of Additional Charge IV: 10 months.
Confinement will run concurrently, for a total of 10 months.
The convening authority took no action in this case.
FOR THE COURT:
RODGER A. DREW, JR.
Clerk of Court
4 |
4,638,840 | 2020-12-02 18:01:56.917977+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2017vv1182-74-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1182V
UNPUBLISHED
JEFFERY ROWE, Chief Special Master Corcoran
Petitioner, Filed: October 30, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Uncontested;
HUMAN SERVICES, Table Injury; Tdap Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Shealene Priscilla Mancuso, Muller Brazil, LLP, Dresher, PA, for Petitioner.
Sarah Christina Duncan, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On September 1, 2017, Jeffery Rowe filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered left shoulder injuries as a result of a
Tdap vaccine administered on July 26, 2016. Petition at 1. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
On October 30, 2020, Respondent filed his Rule 4(c) report in which he states that
he does not contest that Petitioner is entitled to compensation in this case. Respondent’s
Rule 4(c) Report at 1. Specifically, Respondent states that “DICP will not continue to
contest that petitioner suffered SIRVA as defined by the Vaccine Injury Table. Specifically,
petitioner had no recent history of pain, inflammation, or dysfunction of his left shoulder;
1
Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required
to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act
of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic Government
Services). This means the ruling will be available to anyone with access to the internet. In accordance
with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, I agree that
the identified material fits within this definition, I will redact such material from public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
the onset of pain occurred within 48 hours after receipt of an intramuscular vaccination;
the pain was limited to the shoulder in which the vaccine was administered; and, no other
condition or abnormality, such as brachial neuritis, has been identified to explain
petitioner’s left shoulder pain.
42 C.F.R. §§ 100.3
(a), (c)(10). In addition, this Court found
that petitioner suffered the residual effects of his condition for more than six months. 42
U.S.C. § 300aa-11(c)(1)(D)(i). Therefore, based on the record as it now stands and
subject to his right to appeal the Findings of Fact, respondent does not dispute that
petitioner has satisfied all legal prerequisites for compensation under the Act. 42 U.S.C.
§ 300aa-13.” Id. at 5.
In view of Respondent’s position and the evidence of record, I find that
Petitioner is entitled to compensation.
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
2 |
4,638,853 | 2020-12-02 18:02:09.501934+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv1687-35-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1687V
UNPUBLISHED
LINDSAY CARLSON, Chief Special Master Corcoran
Petitioner, Filed: October 30, 2020
v.
Special Processing Unit (SPU); Joint
SECRETARY OF HEALTH AND Stipulation on Damages; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA); Brachial Plexopathy
Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.
DECISION ON JOINT STIPULATION1
On October 30, 2019, Lindsay Carlson filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that she suffered brachial plexopathy and a shoulder
injury related to vaccine administration (“SIRVA”) as a result of an influenza (“flu”) vaccine
administered on October 20, 2018. Petition at 1; Stipulation, filed on October 28, 2020, at
¶¶ 1-2, 4. Petitioner further alleges that the vaccine was administered in the United States;
that she experienced the residual effects of her conditions for more than six months; and
that there has been no prior award or settlement of a civil action for damages as a result
of her conditions. Petition at 1, 4; Stipulation at ¶¶ 3-5. “Respondent denies that petitioner
sustained a SIRVA Table injury; denies that her alleged brachial plexopathy was caused
by the vaccine; and denies that her current condition is a sequalae of a vaccine-related
injury.” Stipulation at ¶ 6.
1 Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Nevertheless, on October 28, 2020, the parties filed the attached joint stipulation,
stating that a decision should be entered awarding compensation. I find the stipulation
reasonable and adopt it as my decision awarding damages, on the terms set forth therein.
Pursuant to the terms stated in the attached Stipulation, I award the following
compensation:
A lump sum of $92,276.00 in the form of a check payable to Petitioner.
Stipulation at ¶ 8. This amount represents compensation for all items of damages
that would be available under Section 15(a). Id.
I approve the requested amount for Petitioner’s compensation. In the absence of
a motion for review filed pursuant to RCFC Appendix B, the clerk of the court is directed
to enter judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2 |
4,638,854 | 2020-12-02 18:02:10.524598+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv1018-42-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1018V
(not to be published)
WAYNE BUTLER,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 29, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Debra A. Filteau Begley, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On July 16, 2018, Wayne Butler filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq., 2 (the
“Vaccine Act”). Petitioner alleges that he suffered injuries including brachial neuritis (BN)
resulting from adverse effects of a flu vaccination on October 5, 2017. (Petition at 1). On
March 16, 2020, a decision was issued awarding compensation to Petitioner based on
the parties’ stipulation. (ECF No. 36).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated October 13,
2020, (ECF No. 40), requesting a total award of $30,899.10 (representing $28,690.80 in
fees and $2,208.30 in costs). In accordance with General Order #9, Petitioner filed a
signed statement indicating that she incurred no out-of-pocket expenses. (Id. at 2).
Respondent did not file a response to Petitioner’s motion for attorney’s fees and costs.
I have reviewed the billing records submitted with Petitioner’s request. In my
experience, the request appears reasonable, and I find no cause to reduce the requested
hours or rates.
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $30,899.10 (representing $28,690.80 in fees and $2,208.30 in costs) as
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
2 |
4,638,887 | 2020-12-02 20:00:25.780394+00 | null | http://www.ca4.uscourts.gov/Opinions/194403.P.pdf | PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4403
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDRES ABELINO AYON-BRITO, a/k/a Hugo Ayon-Brito, a/k/a Joel Diaz
Garcia,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. Anthony John Trenga, District Judge. (1:18-cr-00259-AJT-1)
Argued: October 30, 2020 Decided: December 2, 2020
Before NIEMEYER and KEENAN, Circuit Judges, and Richard E. MYERS II, United
States District Judge for the Eastern District of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Keenan and Judge Myers joined.
ARGUED: Geremy C. Kamens, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Heather Diefenbach Call, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Caroline
S. Platt, Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney,
Daniel T. Young, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
NIEMEYER, Circuit Judge:
Andres Abelino Ayon-Brito was prosecuted and convicted in the Eastern District of
Virginia of reentering the United States without permission after having been removed, in
violation of
8 U.S.C. § 1326
(a). He appeals the district court’s denial of his pretrial motion
to dismiss the indictment based on improper venue.
Section 1326(a) provides that any previously deported alien who “enters, attempts
to enter, or is at any time found in, the United States” without first receiving permission
shall be punished. (Emphasis added). Ayon-Brito argues that even though the indictment
alleged that he was first “encountered” after his reentry by law enforcement officers in the
Eastern District of Virginia, it also alleged, as an element of the offense, that he was
“found” in the Middle District of Pennsylvania where he was first accurately identified.
Therefore, he asserts, the crime charged was committed in the Middle District of
Pennsylvania, and venue was appropriate only there. See
8 U.S.C. § 1329
(establishing
venue for a § 1326 violation in the district where the violation “occur[ed]”).
In denying Ayon-Brito’s motion challenging venue, the district court concluded that
his violation of § 1326(a) was a continuing offense that began when he reentered the United
States and continued wherever he was present until he was found and arrested. The court
thus held that because Ayon-Brito also committed the crime in Virginia, he could be
prosecuted and tried in Virginia.
For the reasons that follow, we affirm.
2
I
Ayon-Brito is a native and citizen of Mexico who was removed from the United
States to Mexico on August 13, 2010, and again on March 1, 2013. He never applied for
or received permission from the Attorney General to reenter the United States.
At some unknown time and place after his removal in 2013, Ayon-Brito reentered
the United States and went to Virginia, where he had previously lived and worked. While
in Virginia, he encountered law enforcement officers in September, October, and
November 2014 while trafficking in drugs. On each occasion, he used an alias. About a
month later, he was arrested in the Middle District of Pennsylvania, again for drug
trafficking. Following this arrest in Pennsylvania, however, his true identity and illegal
status were discovered, and federal law enforcement were notified, rendering him “found”
there. He was subsequently returned to Virginia, where he was convicted of state crimes
and sentenced to a term of imprisonment.
While Ayon-Brito was serving his Virginia sentence, a federal grand jury in the
Eastern District of Virginia returned an indictment charging him with a violation of
8 U.S.C. § 1326
(a). The indictment alleged that on December 14, 2014, in Cumberland
County, Pennsylvania, Ayon-Brito “was found in the United States after having been
removed . . . without having obtained [permission].” It also alleged that before Ayon-Brito
was “found” in Cumberland County, he was “encountered by members of the Fairfax
County Police Department” on three separate occasions within the Eastern District of
Virginia.
3
Ayon-Brito filed a motion to dismiss the indictment, contending that based on its
allegations, the Eastern District of Virginia was not a proper venue for his prosecution and
trial. Relying on the § 1326 offense charged in the indictment, which was based on his
being “found in” Cumberland County, Pennsylvania, he argued that he committed the
offense there. Accordingly, he maintained that under § 1326(a)’s venue provision, the only
proper venue for prosecution of the crime was the Middle District of Pennsylvania. See
8 U.S.C. § 1329
(establishing venue for § 1326 violations where the violation
“occur[red]”). The district court denied Ayon-Brito’s motion, concluding that because a
§ 1326 violation is a continuing offense, venue was proper in the Eastern District of
Virginia.
After denying Ayon-Brito’s motion, the district court conducted a bench trial — as
Ayon-Brito waived his right to a jury trial — and found Ayon-Brito guilty, sentencing him
to six months’ imprisonment, to run consecutively to his previously imposed sentence for
state crimes.
From the judgment of the district court, dated May 17, 2019, Ayon-Brito filed this
appeal, challenging only the district court’s pretrial ruling on venue.
II
Ayon-Brito’s motion to dismiss the indictment for improper venue accepted the
indictment’s allegations for purposes of the motion. He contended that because the
indictment alleged that the violation was based on the “found” element of a § 1326(a)
violation, he committed the alleged crime in the Middle District of Pennsylvania, i.e.,
4
where he was found. Accordingly, he argued that under the § 1329 venue provision, he
should have been prosecuted and tried in the Middle District of Pennsylvania. See
8 U.S.C. § 1329
(providing venue for § 1326 violations “at any place in the United States at which
the violation may occur”). The district court denied Ayon-Brito’s motion, concluding that:
Because [a] “found in” violation of 1326 is a continuing offense, venue is
proper in any district in which such offense was begun, continued, or
completed, and this would include any district in which the defendant was
present between the time of his illegal reentry and the time he was found by
immigration authorities.
The court thus held that inasmuch as the indictment alleged that Ayon-Brito had been in
the Eastern District of Virginia, his presence there continued his reentry violation until he
was “found,” and venue for prosecution and trial was appropriate in that district.
Venue is based on the right of a defendant to be prosecuted and tried in a location
that serves his convenience and the convenience of other parties and witnesses, while also
promoting judicial efficiency. Thus, venue principles focus on some connection with either
the parties or the events giving rise to the litigation, so as to guard against “needless
hardship to an accused by prosecution remote from home and from appropriate facilities
for defense.” United States v. Johnson,
323 U.S. 273
, 275 (1944). Such provisions also
“protect defendants from the bias . . . that may attend trial in a forum other than the one in
which the crime was committed.” United States v. Rowe,
414 F.3d 271
, 277 (2d Cir. 2005).
“Aware of the unfairness and hardship to which trial in an environment alien to the accused
exposes him, the Framers wrote into the Constitution that ‘The Trial of all Crimes . . . shall
be held in the State where the said Crimes shall have been committed.’” Johnson,
323 U.S. at 275
(quoting U.S. Const. art. III, § 2, cl. 3); see also U.S. Const. amend. VI (providing
5
that criminal defendants have the right to be tried “by an impartial jury of the State and
district wherein the crime shall have been committed”); Fed. R. Crim. P. 18 (same).
And for violations of
8 U.S.C. § 1326
in particular, Congress has established venue
— consistent with the Constitution — “at any place in the United States at which the
violation may occur.”
8 U.S.C. § 1329
(emphasis added). 1 And when a violation occurs
in more than one district — such as where the elements of the offense are satisfied in
different districts or where the offense by its nature is a continuing offense — venue is
appropriate in any district in which the violation “was begun, continued, or completed.”
18 U.S.C. § 3237
(a); see also United States v. Ruelas-Arreguin,
219 F.3d 1056
, 1061–62
(9th Cir. 2000).
The question thus presented in this case is where was Ayon-Brito’s violation of
§ 1326(a) committed — or, when posed with § 1329’s language, where did it occur. And
the answer to that question turns on the nature of the offense, focusing on its elements. See
Richardson v. United States,
526 U.S. 813
, 818–19 (1999) (noting that a “violation” of a
criminal statute refers to the satisfaction of the “separate element[s]” of the offense); United
1
Section 1329 also establishes venue for § 1326 violations “at any place in the
United States . . . at which the person charged . . . may be apprehended.” (Emphasis added).
While we do not consider for application this portion of the venue provision, it nonetheless
might appear to be in tension with the Constitution’s where-committed requirement. But
when it is understood that a violation of § 1326 is an ongoing violation committed wherever
the defendant is voluntarily present after reentry, the place where the defendant is
“apprehended” would be consistent with where the crime was “committed.” Indeed,
§ 1329’s inclusion of a venue where the defendant is apprehended is itself indicative of
Congress’s intent that a § 1326 violation is ongoing until the defendant is found or, as used
in § 1329, apprehended.
6
States v. Rodriguez-Moreno,
526 U.S. 275
, 279 (1999) (noting that to determine venue, a
court must “initially identify the conduct constituting the offense (the nature of the crime)
and then discern the location of the commission of the criminal acts”); United States v.
Cabrales,
524 U.S. 1
, 6–7 (1998) (same); Ruelas-Arreguin,
219 F.3d at 1061
(same).
Therefore, we begin with determining the elements of the offense to identify the “essential
conduct elements,” Rodriguez-Moreno,
526 U.S. at 280
, to then be able to assess where
those conduct elements were satisfied for purposes of determining venue.
Section 1326(a) provides that “any alien who . . . enters, attempts to enter, or is at
any time found in, the United States” without permission after having previously been
“deported or removed” from the United States shall be punished.
8 U.S.C. § 1326
(a). Thus,
the elements of the offense are: (1) that the defendant is an alien; (2) that he was deported
or removed from the United States; (3) that he thereafter reentered (or attempted to reenter)
the United States; and (4) that he lacked permission to do so. See United States v. Ayala,
35 F.3d 423
, 425–26 (9th Cir. 1994); see also United States v. Tovias-Marroquin,
218 F.3d 455
, 456–57 (5th Cir. 2000); United States v. Barragan-Cepeda,
29 F.3d 1378
, 1381 (9th
Cir. 1994). Under this formulation, the “found” term in the statute is not employed to
define an element. As the Seventh Circuit explained:
The point of using a word such as “found” in § 1326(a)(2) is to avoid any
need to prove where and when the alien entered; the offense follows the alien.
Just as it makes perfect sense to say that “the lousewort is found in all 50
states” so it makes sense — if it is not an inevitable reading of the statute —
to say that the alien is “found” wherever he is.
* * *
7
[Thus,] the statutory language suggests [that] . . . the alien commits the
offense wherever he goes. The crime is being in the United States and is not
limited to the instant at which a federal agent lays hands on the person and a
lightbulb in the agent’s head illuminates the mental sign “This guy’s an
illegal alien.”
United States v. Rodriguez-Rodriguez,
453 F.3d 458
, 460 (7th Cir. 2006). Or stated
somewhat differently, the “reentry” element of the crime is established whenever the alien
is found, “wherever he is. . . . The crime is being in the United States.”
Id.
(first emphasis
added). In this way, “entry” is “embedded” in the term “found” because “[a]n ‘entry’ into
the United States is required before a person is ‘found in’ the United States.” Ruelas-
Arreguin,
219 F.3d at 1061
. “Found” is thus simply a prosecutorial authorization
broadening the proof sufficient to establish “reentry.”
Moreover, because “found” does not itself refer to an act or conduct of the
defendant, it does not describe a conduct element. 2 It has been long established “that
criminal penalties may be inflicted only if the accused has committed some act, has
engaged in some behavior, which society has an interest in preventing, or perhaps in
historical common law terms, has committed some actus reus.” Ayala,
35 F.3d at 426
(emphasis added) (quoting Powell v. Texas,
392 U.S. 514
, 533 (1968) (plurality opinion));
see also Tovias-Marroquin,
218 F.3d at 457
. And the actus reus of a § 1326 violation is
the defendant’s “re-enter[ing] the United States without permission.” Ayala,
35 F.3d at
2
Of course, crimes also have elements that are not conduct elements, such as mens
rea and causation. But for purposes of determining venue, we must identify the “essential
conduct elements” and “then discern the location of the[ir] commission.” Rodriguez-
Moreno,
526 U.S. at 280, 279
(emphasis added).
8
426 (emphasis added). In short, the conduct element of a § 1326 violation is “entry” (or
“attempted entry”), not “found.”
With this understanding of “found” in § 1326(a), it is apparent that Congress
included the term to extend the scope of the conduct element “entry” to when and where
the alien is found, thus creating a continuing offense centered on the alien’s entry into the
United States and presence therein until found. See Rodriguez-Rodriguez,
453 F.3d at 460
.
This follows from the operative language of § 1326(a), which punishes the conduct of a
previously deported alien who “enters [or] attempts to enter” the United States until “at
any time,” he is “found in[] the United States” as a result of the entry.
8 U.S.C. § 1326
(a)(2)
(emphasis added); see Find, v., Oxford English Dictionary Online (Sept. 2020) (defining
passive form of verb “found” as “[t]o be identified as present; to exist; to occur; to be
located at a specific site”); see also United States v. Are,
498 F.3d 460
, 464 (7th Cir. 2007)
(noting that the prohibited conduct of reentry “continues to the time when [the defendant]
is arrested for the offense”); United States v. Villarreal-Ortiz,
553 F.3d 1326
, 1330 (10th
Cir. 2009) (a § 1326(a) offense “is first committed when the defendant voluntarily reenters
the country and continues to be committed until the defendant is ‘found’”). Indeed, this
continuing nature of the offense is nearly universally recognized. See United States v.
Hernandez-Gonzalez,
495 F.3d 55
, 61–62 (3d Cir. 2007); United States v. Santana-
Castellano,
74 F.3d 593
, 598 (5th Cir. 1996); United States v. Jimenez,
605 F.3d 415
, 422
(6th Cir. 2010); United States v. Rivera-Mendoza,
682 F.3d 730
, 733 (8th Cir. 2012);
Ruelas-Arreguin,
219 F.3d at 1061
; United States v. Scott,
447 F.3d 1365
, 1369 (11th Cir.
2006); United States v. Mendez-Cruz,
329 F.3d 885
, 889 (D.C. Cir. 2003).
9
At bottom, we hold that § 1326(a) creates a continuing offense, which begins with
a previously deported alien’s reentry (or attempted reentry) into the United States and
continues until the alien is found. And because Congress created a continuing offense, “the
locality of the crime . . . extend[s] over the whole area through which force propelled by
an offender operates.” United States v. Cores,
356 U.S. 405
, 408 (1958) (cleaned up);
Johnson,
323 U.S. at 275
(same). For purposes of venue, therefore, a violation of § 1326(a)
may be prosecuted not only where the defendant enters or attempts to enter the United
States but also at any place that he is present thereafter until he is found.
Ayon-Brito’s entire argument to the contrary rests on his assumption that “found,”
as used in the statute, is a discrete element of a § 1326(a) offense and that that element was
satisfied in this case in the Middle District of Pennsylvania, where law enforcement officers
first identified his real name and his illegal status. See Are,
498 F.3d at 465
(describing
“found” as to require discovery of the alien’s identity and illegal status). But the
assumption that “found” is a conduct element of the offense, is, as already noted, faulty.
The term “found” instead describes the conclusion of an alien’s unlawful reentry, which is
the operative conduct element.
In this case, the indictment charged that Ayon-Brito was an alien who had been
removed from the United States in March 2013 and reentered thereafter without
permission; that in 2014 he was “encountered by” Fairfax County police in the Eastern
District of Virginia on three separate occasions — in September, October, and November
2014; and that he was “found” in Cumberland County, Pennsylvania, on December 14,
2014. The offense charged thus began at some unknown point in time and place after
10
Ayon-Brito’s removal when he reentered the United States without permission, and it
continued thereafter until he was ultimately found and apprehended in Pennsylvania. As a
consequence, Ayon-Brito was appropriately prosecuted in the Eastern District of Virginia,
where he was present during his continuing violation of § 1326(a). See Cores,
356 U.S. at 408
;
8 U.S.C. § 1329
.
* * *
It is well understood that regulating the appropriate venue for criminal prosecutions
and trials serves an important policy of procedural fairness, as it takes into account the
convenience of the parties, witnesses, and victims and aspires to the “prompt
administration of justice.” Fed. R. Crim. P. 18. Moreover, the Sixth Amendment adds
gravitas to venue, linking criminal-trial venues to the jury-trial right by providing that a
criminal defendant has the right to be tried by an impartial jury “of the State and district
wherein the crime [was] committed.” U.S. Const. amend. VI.
Our ruling today compromises none of these values. To the contrary, it increases
the number of available venues, approving, in addition to Ayon-Brito’s argued-for venue,
the venue where he lived and worked. If he believed that he faced prejudice or
inconvenience in the Eastern District of Virginia, he could have sought a transfer to the
Middle District of Pennsylvania. See Fed. R. Crim. P. 21. But he did not do so. He elected
a bench trial in Virginia and, by all accounts, was dealt with fairly; he has made no
complaint otherwise.
The judgment of the district court is
AFFIRMED.
11 |
4,638,855 | 2020-12-02 18:02:11.526386+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2019vv0903-30-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0903V
UNPUBLISHED
BRAD BUNDESEN, Chief Special Master Corcoran
Petitioner, Filed: October 28, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for
Petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION AWARDING DAMAGES1
On June 20, 2019, Brad Bundesen filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the
“Vaccine Act”). Petitioner alleges that he suffered he suffered a left Shoulder Injury
Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine
administered to him on November 3, 2017. Petition at 1. Petitioner further alleges that his
injury lasted longer than six months. Petition at 4. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On October 28, 2020, a ruling on entitlement was issued, finding Petitioner entitled
to compensation for SIRVA. On October 28, 2020, Respondent filed a proffer on award
of compensation (“Proffer”) indicating Petitioner should be awarded a total of $52,981.25,
consisting of $52,500.00 for pain and suffering, and $481.25 for past unreimbursed
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
expenses. Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with
the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled
to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $52,981.25, consisting of $52,500.00 for pain and suffering, and
$481.25 for past unreimbursed expenses in the form of a check payable to
Petitioner. This amount represents compensation for all damages that would be available
under § 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
BRAD BUNDESEN, ) No. 19-903V
) Chief Special Master Brian H. Corcoran
Petitioner, )
)
v. )
)
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On October 15, 2020, respondent conceded that entitlement to compensation was
appropriate under the terms of the Vaccine Act. Thereafter, on the same date, Chief Special
Master Corcoran issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine
compensation for his Shoulder Injury Related to Vaccine Administration (“SIRVA”) and related
sequela.
I. Amount of Compensation
Respondent now proffers that, based on the Chief Special Master’s entitlement decision
and the evidence of record, petitioner should be awarded $52,981.25. The award is comprised of
the following: $52,500.00 for pain and suffering, and $481.25 for past unreimbursed expenses.
This amount represents all elements of compensation to which petitioner would be entitled under
42 U.S.C. § 300aa-15(a). Petitioner agrees.
1
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made as
described below, and request that the Chief Special Master’s damages decision and the Court’s
judgment award the following: 1
A. Petitioner’s Damages
Respondent recommends that the compensation provided to petitioner should be made
through:
a lump sum of $52,981.25, in the form of a check payable to petitioner. This
amount represents compensation for all damages that would be available under 42
U.S.C. § 300aa-15(a).
Petitioner agrees.
B. Guardianship
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Deputy Director
Torts Branch, Civil Division
ALEXIS B. BABCOCK
Assistant Director
Torts Branch, Civil Division
1
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future pain and suffering, and future lost wages.
2
/s/ KYLE E. POZZA_________
Kyle E. Pozza
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Ben Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 616-3661
Fax: (202) 616-4310
Email: kyle.pozza@usdoj.gov
Dated: October 28, 2020
3 |
4,638,856 | 2020-12-02 18:02:12.521726+00 | null | https://ecf.cofc.uscourts.gov/cgi-bin/show_public_doc?2018vv0103-76-0 | In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-103V
(not to be published)
M.A.,
Chief Special Master Corcoran
Petitioner,
v. Filed: October 28, 2020
SECRETARY OF HEALTH AND Special Processing Unit (SPU);
HUMAN SERVICES, Attorney’s Fees and Costs
Respondent.
Jane Ann Morrow, Otorowski, Johnston, et. al, Bainbridge Island, WA, for Petitioner.
Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION ON ATTORNEY’S FEES AND COSTS 1
On January 22, 2018, M.A. filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine
Act”). Petitioner alleges that he suffered shoulder injuries caused in fact by the influenza
vaccination he received on October 4, 2016. (Petition at 1, ¶ 2). On July 28, 2020, a
decision was issued awarding compensation to Petitioner based on the Respondent’s
proffer. (ECF No. 60).
1 Because this unpublished Decision contains a reasoned explanation for the action in this case, I am
required to post it on the United States Court of Federal Claims' website in accordance with the E-
Government Act of 2002.
44 U.S.C. § 3501
note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the Decision will be available to anyone with access to the
internet. In accordance with Vaccine Rule 18(b), Petitioner has 14 days to identify and move to redact
medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy.
If, upon review, I agree that the identified material fits within this definition, I will redact such material from
public access.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,
100 Stat. 3755
. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Petitioner has now filed a motion for attorney’s fees and costs, dated September
2, 2020, (ECF No. 71), requesting a total award of $76,490.65 (representing $58,637.00
in fees and $17,853.65 in costs). In accordance with General Order #9, counsel for
Petitioner represents that Petitioner incurred no out-of-pocket expenses. (ECF No. 70 at
1). Respondent reacted to the motion on September 8, 2020 indicating that he is satisfied
that the statutory requirements for an award of attorney’s fees and costs are met in this
case and defers to the Court’s discretion to determine the amount to be awarded. (ECF
No. 71). Petitioner did not file a reply thereafter.
I have reviewed the billing records submitted with Petitioner’s requests and find a
reduction in the amount of fees to be awarded appropriate for the reasons listed below.
ANALYSIS
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Counsel must submit fee requests that include contemporaneous and specific
billing records indicating the service performed, the number of hours expended on the
service, and the name of the person performing the service. See Savin v. Sec’y of Health
& Human Servs.,
85 Fed. Cl. 313
, 316-18 (2008). Counsel should not include in their fee
requests hours that are “excessive, redundant, or otherwise unnecessary.” Saxton v.
Sec’y of Health & Human Servs.,
3 F.3d 1517
, 1521 (Fed. Cir. 1993) (quoting Hensley v.
Eckerhart,
461 U.S. 424
, 434 (1983)). It is “well within the special master’s discretion to
reduce the hours to a number that, in [her] experience and judgment, [is] reasonable for
the work done.” Id. at 1522. Furthermore, the special master may reduce a fee request
sua sponte, apart from objections raised by respondent and without providing a petitioner
notice and opportunity to respond. See Sabella v. Sec’y of Health & Human Servs.,
86 Fed. Cl. 201
, 209 (2009). A special master need not engage in a line-by-line analysis of
petitioner’s fee application when reducing fees. Broekelschen v. Sec’y of Health & Human
Servs.,
102 Fed. Cl. 719
, 729 (2011).
The petitioner “bears the burden of establishing the hours expended, the rates
charged, and the expenses incurred.” Wasson v. Sec’y of Health & Human Servs., 24 Cl.
Ct. at 482, 484 (1991). The Petitioner “should present adequate proof [of the attorney’s
fees and costs sought] at the time of the submission.” Id. at 484 n.1. Petitioner’s counsel
“should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is
obligated to exclude such hours from his fee submission.” Hensley,
461 U.S., at 434
.
2
ATTORNEY FEES
A. Hourly Rates
Petitioner requests the following rates: for attorney Jane Ann Morrow: $410 for
time billed in 2017; $420 for time billed in 2018; $435 for time billed in 2019 and $450 for
time billed in 2020; attorney Ed Harper $300 for all time billed in 2017; and for paralegals
the rate of $145 for time billed in 2017; $150 for time billed in 2018; $155 for time billed
in 2019 and $160 for time billed in 2020. (ECF No. 70 at 7). The rates for Ms. Morrow and
the paralegals have been previously awarded and will be awarded in this matter as well.
i. Ed Harper
Attorney Ed Harper billed 12.65 hours in 2017 for a total of $3,795.00. (Id.) The
billing records submitted reflect that Mr. Harper’s time was spent “reviewing emails” and
performing “research”.
Prior to Ms. Morrow’s involvement in the case, Mr. Harper’s time was spent
familiarizing himself with the Vaccine Program. However, “[i]t is inappropriate for counsel
to bill time for educating themselves about basic aspects of the Vaccine Program.”
Matthews v. Sec’y of Health & Human Servs., No. 14-1111V,
2016 WL 2853910
, at *2
(Fed. Cl. Spec. Mstr. Apr. 18, 2016). “An inexperienced attorney may not ethically bill his
client to learn about an area of law in which he is unfamiliar. If an attorney may not bill his
client for this task, the attorney may also not bill the Program for this task.” Carter v. Sec’y
of Health & Human Servs., No. 04-1500V,
2007 WL 2241877
, at *5 (Fed. Cl. Spec. Mstr.
July 13, 2007). Once Ms. Morrow began working on Petitioner’s case, Mr. Harper’s time
was spent reviewing emails.
Based on the invoices submitted and the vagueness of the entries on the invoices,
it is unclear what Mr. Harper’s contributions to this case have been. I find the time
requested for Mr. Harper unnecessary and deny the request for fees submitted by Mr.
Harper in full. This reduces the request for attorney fees by $3,795.00.
B. Travel Time
On February 4, 2020, Ms. Morrow billed 8 hours for “site visit with Respondent”,
however did not differentiate time spent on travel to and from the site and time spent on
the visit itself. (ECF No. 70-1 at 5). In the Vaccine Program, special masters traditionally
have compensated for time spent traveling when no other work was being performed at
3
one-half an attorney’s hourly rate. See Hocraffer v. Sec’y of Health & Human Servs., No.
99-533V,
2011 WL 3705153
, at *24 (Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v.
Sec'y of Health & Human Servs., No. 06-559V,
2009 WL 2568468
, at *21 (Fed. Cl. Spec.
Mstr. Jul. 27, 2009); English v. Sec’y of Health & Human Servs., No. 01-61V,
2006 WL 3419805
, at *12-13 (Fed. Cl. Spec. Mstr. Nov. 9, 2006). However, special masters should
not use this rule as standard practice but rather “[e]ach case should be assessed on its
own merits.” Gruber v. Sec'y of Health & Human Servs.,
91 Fed. Cl. 773
, 791 (2010).
“Even an automatic 50% award may be too high for an undocumented claim, given the
possibility that an attorney may use the travel time to work on another matter or not to
work at all while traveling.”
Id.
Ms. Morrow is requesting mileage reimbursement for 134.2
miles. (ECF No. 70-2 @2). Given the area Ms. Morrow was driving through, which would
have taken longer to travel, it is difficult to assess how much of the 8 hours billed was
spent traveling and how much was spent during the site visit. As I cannot decipher the
exact time spent, I find it is reasonable to find one-half of this time, four hours, was spent
driving to and from the site visit. Thus, I will reduce this entry by 25 percent, resulting in
a reduction of $900.00.
C. Administrative Time
Upon review of the billing records submitted, it appears that a number of entries
are for tasks considered clerical or administrative. In the Vaccine Program, secretarial
work “should be considered as normal overhead office costs included within the attorney’s
fee rates.” Rochester v. U.S.,
18 Cl. Ct. 379
, 387 (1989); Dingle v. Sec’y of Health &
Human Servs., No. 08-579V,
2014 WL 630473
, at *4 (Fed. Cl. Spec. Mstr. Jan. 24, 2014).
“[B]illing for clerical and other secretarial work is not permitted in the Vaccine Program.”
Mostovoy,
2016 WL 720969
, at *5 (citing Rochester, 18 Cl. Ct. at 387). A total of 8.1 hours
was billed by paralegals on tasks considered administrative including, receiving
documents, forwarding correspondence, reviewing and organizing the client file, and
mailing documents. Examples of these entries include the following:
• September 11, 2017 (0.30 hrs) “HITECH letter sent to providers”
• March 16, 2018 (0.10 hrs) “Call Court re problems with exhibit numbering”
• April 20, 2018 (0.20 hrs) “Calendar deadlines noted in 04/10/18 Scheduling
Order”
• January 18, 2019 (0.30 hrs) “Call Court re error in status report”
(ECF No. 70-1 at 8 -9). 3
3 These are merely examples and not an exhaustive list.
4
I hereby reduce the request for attorney fees for all time considered administrative,
reducing the request by $1,220.00. 4
D. Duplicate Billing Entries
In reviewing the billing invoices submitted, there are multiple duplicate billing
entries, in which the entries reflect the exact same date, billing time, and description of
the billing task. The entries repeat throughout mid - 2018 and most of 2019. (ECF No. 70-
1 at 3-4). This appears to be an administrative error, however it resulted in 3.15 hours of
double billing in 2018 and 13.75 hours of double billing in 2019. The duplicate entries will
not be reimbursed, and this reduces the request for attorney fees by $7,304.25. 5
ATTORNEY COSTS
Petitioner requests $17,853.65 in overall costs. (ECF No. 70 at 2). This amount is
comprised of obtaining medical records, expert costs, and the Court’s filing fee. I have
reviewed all of the requested costs and corresponding information and find a reduction of
costs to be appropriate, as set forth below.
A. Expert Costs
i. Marko Bodor, M.D.
Dr. Marko Bodor submitted a total of $2,003.00 in fees and costs. Dr. Bodor
billed his time at $500.00 per hour. I find this rate to be reasonable and his amount
requested to be reasonable and award it herein.
ii. Eric Brand, M.D.
Dr. Eric Brand submits a total of $8,396.18 in fees and costs. (ECF No.70-3 at 2).
Dr. Brand billed his time at $650 per hour for 2019 and $700 per hour for 2020. Although
Dr. Brand has extensive experience in his field, his requested rate is considered
excessive for work performed in the Vaccine Program. Fees for experts are subject to the
same reasonableness standard as fees for attorneys.” See Baker v. Sec’y of Health &
4 This amount consists of ($145 x 4.1 hrs = $594.50) + ($150 x 2.8 hrs = $420) + ($155 x 0.5 = $77.50) +
($160 x 0.8 hrs = $128) = $1,220.00.
5 This amount consists of ($420 x 3.15 hrs = $1,323.00) + ($435 x 13.75 = $5,981.25) = $7,304.25.
5
Human Servs., No. 99-653V,
2005 WL 589431
, at *1 (Fed. Cl. Spec. Mstr. Feb 24, 2005).
For Dr. Brand’s work, I find the rate of $500 per hour for all time billed to be more aligned
with what other experts in the Program have been awarded. This results in a reduction of
Mr. Brand’s time in the amount of $2,014.50. 6
iii. OSC Vocational
For the life care planning services of OSC Vocational, Petitioner requests a total
of $6,296.55 in fees and costs. This consists of 26.10 hrs at $239 per hour. I find the
hourly rate reasonable, however find a reduction is needed for time billed for travel. In the
Vaccine Program, special masters traditionally have compensated time spent traveling
when no other work was being performed at one-half an attorney’s hourly rate. See
Hocraffer v. Sec’y of Health & Human Servs., No. 99-533V,
2011 WL 3705153
, at *24
(Fed. Cl. Spec. Mstr. July 25, 2011); Rodriguez v. Sec'y of Health & Human Servs., No.
06-559V,
2009 WL 2568468
, at *21 (Fed. Cl. Spec. Mstr. Jul. 27, 2009); English v. Sec’y
of Health & Human Servs., No. 01-61V,
2006 WL 3419805
, at *12-13 (Fed. Cl. Spec.
Mstr. Nov. 9, 2006). Life care planners and other experts are held to the same
reasonableness as attorneys in the program and as such I will reduce the hours billed for
travel by 50% reducing the request for costs by $382.40.
iv. Other Costs
Petitioner has several items listed under “Other costs”, consisting of shipping
expenses, the purchase of cd’s and binders. (ECF No. 70-3 at 3-4). Upon review of the
documents provided, there was no documentation provided for shipping charges on the
following dates; December 6, 2017 ($0.98); May 24, 2018 ($17.78); May 2, 2019 ($13.50)
and April 29, 2020 ($2.50). Additionally, no documentation was provided for the charges
regarding “binding expense” for $12.00 on September 22, 2017 and “disk duplication” for
$150.00 on September 17, 2018. (Id. at 4). As no proof of payment was provided for these
costs, they will not be reimbursed. This results in a reduction of costs in the amount of
$195.78.
CONCLUSION
The Vaccine Act permits an award of reasonable attorney’s fees and costs. §
15(e). Accordingly, I hereby GRANT Petitioner’s Motion for attorney’s fees and costs. I
award a total of $60,678.72 (representing $45,417.75 in fees and $15,260.97 in costs) as
6This amount consists of ($650 - $500 = $150 x 10.7633 hrs = $1,614.50) + ($700 - $500 = $200 x 2 hrs
= $400.00).
6
a lump sum in the form of a check jointly payable to Petitioner and Petitioner’s counsel.
In the absence of a timely-filed motion for review (see Appendix B to the Rules of the
Court), the Clerk shall enter judgment in accordance with this decision. 7
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
7 Pursuant to Vaccine Rule 11(a), the parties may expedite entry of judgment by filing a joint notice
renouncing their right to seek review.
7 |
Subsets and Splits