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state-v-brody
Brody
State v. Brody
null
null
null
null
null
null
null
null
null
null
null
null
2
Published
null
null
[ "2013 Ohio 340" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/11/2013/2013-ohio-340.pdf", "author_id": 8065, "opinion_text": "[Cite as State v. Brody, 2013-Ohio-340.]\n\n\n IN THE COURT OF APPEALS\n\n ELEVENTH APPELLATE DISTRICT\n\n LAKE COUNTY, OHIO\n\n\nSTATE OF OHIO, : OPINION\n\n Plaintiff-Appellee, :\n CASE NOS. 2012-L-050,\n - vs - : 2012-L-051,\n and 2012-L-052\nDAVID E. BRODY, :\n\n Defendant-Appellant. :\n\n\nCriminal Appeals from the Lake County Court of Common Pleas, Case Nos. 10 CR\n000026, 10 CR 000029, and 10 CR 000366.\n\nJudgment: Affirmed.\n\n\nCharles E. Coulson, Lake County Prosecutor, and Karen A. Sheppert, Assistant\nProsecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-\nAppellee).\n\nDavid E. Brody, pro se, PID: A591175, Grafton Correctional Institution, 2500 South\nAvon Belden Road, Grafton, OH 44044 (Defendant-Appellant).\n\n\n\nTIMOTHY P. CANNON, P.J.\n\n {¶1} Appellant, David E. Brody, appeals the judgments of the Lake County\n\nCourt of Common Pleas, denying his post-sentence motions to withdraw his guilty pleas\n\nin three separate cases. At issue is whether the trial court abused its discretion in\n\nfinding a lack of manifest injustice to support a withdrawal of the pleas. For the reasons\n\nthat follow, the judgments are affirmed.\n\f {¶2} Appellant was charged on an 11-count indictment (case No. 10 CR\n\n000026), a 17-count indictment (case No. 10 CR 00029), and a one-count information\n\n(case No. 10 CR 000366).\n\n {¶3} On June 23, 2010, appellant entered into a plea bargain with the state\n\npursuant to which he entered a guilty plea in each of his three cases. In case No. 10\n\nCR 000026, appellant pled guilty to misuse of credit cards, a fifth-degree felony in\n\nviolation of R.C. 2913.21(B)(2); grand theft of a firearm, a third-degree felony in violation\n\nof R.C. 2913.02(A)(1); and burglary, a second-degree felony in violation of R.C.\n\n2911.12(A)(2), with a firearm specification, in violation of R.C. 2941.141.\n\n {¶4} In case No. 10 CR 000029, appellant pled guilty to breaking and entering,\n\na fifth-degree felony in violation of R.C. 2911.13(A); receiving stolen property involving a\n\nmotor vehicle, a fourth-degree felony in violation of R.C. 2913.51(A); grand theft of\n\nanother motor vehicle, a fourth-degree felony in violation of R.C. 2913.02(A)(1); and\n\nvandalism, a fourth-degree felony in violation of R.C. 2909.05(A).\n\n {¶5} Finally, in case No. 10 CR 000366, appellant pled guilty to burglary, a\n\nsecond-degree felony in violation of R.C. 2911.12(A)(2).\n\n {¶6} Pursuant to the plea bargain, in exchange for appellant’s guilty pleas, the\n\ntrial court dismissed the multiple remaining counts in the indictments.\n\n {¶7} The trial court found appellant’s guilty pleas were made knowingly,\n\nintelligently, and voluntarily; accepted the guilty pleas; and found appellant guilty. On\n\nJuly 29, 2010, the court sentenced appellant consecutively in each of his cases for an\n\naggregate of 18 years in prison.\n\n\n\n\n 2\n\f {¶8} Appellant initiated direct appeals, claiming the trial court erred by imposing\n\nconsecutive sentences. This court affirmed the judgments. State v. Brody, 11th Dist.\n\nNos. 2010-L-095, 2010-L-096, & 2010-L-097, 2011-Ohio-4884.\n\n {¶9} Shortly thereafter, appellant filed a motion to withdraw his guilty plea in\n\neach of his respective cases, arguing ineffective assistance of counsel during the plea\n\nbargain stage. Upon consideration, the court denied the motions. Appellant, pro se,\n\nnow appeals. This court, sua sponte, consolidated the cases for purposes of appeal.\n\nAppellant raises two assignments of error which, as they are interrelated, will be\n\nconsidered together:\n\n {¶10} “[1.] The trial court abused its discretion by denying Defendant-Appellant’s\n\nmotion to withdraw his guilty plea.\n\n {¶11} “[2.] Defendant-Appellant was not provided his Sixth Amendment right to\n\nEffective Assistance of Counsel during the plea bargain stage.”\n\n {¶12} Appellant argues his pleas were not entered knowingly, intelligently, or\n\nvoluntarily because his counsel was ineffective in counseling him during the plea\n\nbargain stage. Appellant explains his counsel’s performance was deficient in that he\n\nreceived erroneous advice on the nature of his sentence. Appellant additionally\n\ncharges his attorney with coercing him into a plea bargain even though no discovery\n\nhad been conducted. As such, appellant contends the trial court abused its discretion in\n\ndenying his motions to withdraw his pleas as his allegations are tantamount to manifest\n\ninjustice.\n\n {¶13} An appellate court analyzes a trial court’s decision regarding a motion to\n\nwithdraw a guilty plea based on an abuse of discretion standard of review. State v.\n\n\n\n\n 3\n\fGibbs, 11th Dist. No. 98-T-0190, 2000 Ohio App. LEXIS 2526 (June 9, 2000), *6-7. An\n\nabuse of discretion is the trial court’s “‘failure to exercise sound, reasonable, and legal\n\ndecision-making.’” State v. Beechler, 2d Dist. No. 09-CA-54, 2010-Ohio-1900, ¶62,\n\nquoting Black’s Law Dictionary 11 (8th Ed.2004).\n\n {¶14} Crim.R. 32.1 provides for a withdrawal of a guilty plea, stating “[a] motion\n\nto withdraw a plea of guilty or no contest may be made only before sentence is\n\nimposed; but to correct manifest injustice the court after sentence may set aside the\n\njudgment of conviction and permit the defendant to withdraw his or her plea.”\n\n {¶15} Here, appellant filed his motion to withdraw his plea after his sentencing.\n\nThus, pursuant to Crim.R. 32.1, appellant must have demonstrated manifest injustice to\n\nbe entitled to relief. “Under this higher standard [of manifest injustice], a defendant is\n\nentitled to prevail on the motion only if the existence of extraordinary circumstances has\n\nbeen established.” State v. Combs, 11th Dist. No. 2007-P-0075, 2008-Ohio-4158, ¶34.\n\n“The reason for such a high standard for granting a post-sentence motion to withdraw a\n\nguilty plea ‘is to discourage a defendant from pleading guilty to test the weight of\n\npotential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.’”\n\nState v. Clark, 11th Dist. No. 2009-A-0038, 2010-Ohio-1491, ¶13, quoting State v.\n\nCaraballo, 17 Ohio St.3d 66, 67 (1985).\n\n {¶16} However, claims raised in a post-sentence motion to withdraw a guilty\n\nplea which were raised or could have been raised in a direct appeal are barred by res\n\njudicata. State v. Lorenzo, 11th Dist. No. 2007-L-085, 2008-Ohio-1333, ¶21; State v.\n\nGreen, 11th Dist. Nos. 2005-A-0069 & 2005-A-0070, 2006-Ohio-6695, ¶13; and State v.\n\nMcDonald, 11th Dist. No. 2003-L-155, 2004-Ohio-6332, ¶22. See also State v.\n\n\n\n\n 4\n\fThomas, 3d Dist. No. 10-10-17, 2011-Ohio-4337, ¶18; and State v. Rose, 12th Dist. No.\n\nCA2010-03-059, 2010-Ohio-5669, ¶18.\n\n {¶17} For instance, in State v. Johnson, 6th Dist. No. OT-11-101, 2012-Ohio-\n\n1400, the defendant filed a post-sentence motion to withdraw his guilty plea based on\n\nineffective assistance of trial counsel during plea bargaining. The Sixth Appellate\n\nDistrict concluded that, as appellant was able to, but failed to, raise the claims during his\n\ndirect appeal, res judicata barred him “from raising those claims in his motion to\n\nwithdraw his guilty plea.” Id. at ¶10. See also State v. LaPlante, 4th Dist. No.\n\n11CA3215, 2011-Ohio-6675, ¶8 (finding res judicata to bar ineffective assistance of\n\ncounsel claims found in defendant’s post-sentence Crim.R. 32.1 motion when those\n\nclaims were based upon information available to him at the time of direct appeal).\n\n {¶18} Here, the arguments appellant asserts in his Crim.R. 32.1 motions were\n\nbased on ineffective assistance of trial counsel during plea bargaining. Each assertion\n\n(e.g., erroneous advice, no discovery) was based upon information available to\n\nappellant at the time of his direct appeal. Appellant’s arguments are therefore barred by\n\nres judicata. If appellant genuinely believed he suffered ineffective assistance of\n\ncounsel that resulted in involuntary pleas, the time to assert such a claim would have\n\nbeen during his direct appeals. Rather than attack the validity of his pleas during his\n\ndirect appeals, however, appellant elected to attack the trial court’s sentence, arguing it\n\nwas improper to issue consecutive terms. We note appellant’s motions to withdraw his\n\npleas were filed approximately five months after the notices of appeal were filed.\n\n {¶19} Appellant explains, in a response brief, that he tried to raise this matter in\n\nhis direct appeals, but his attorney explained issues regarding his plea would best be\n\n\n\n\n 5\n\fcontained in a Crim.R. 32.1 motion. There is no evidence to support this contention in\n\nthe record. Though appellant attached to his response brief a letter purporting to be\n\nfrom his attorney, it cannot be considered, pursuant to App.R. 9(A)(1), as it is not part of\n\nthe record. See generally State v. Ott, 11th Dist. No. 2012-P-0010, 2012-Ohio-4471, ¶7\n\n(“[a]ppellant attached multiple exhibits to his merit brief which cannot be considered\n\nbecause they are not part of the record”).\n\n {¶20} In the alternative, appellant contends that, if res judicata bars his claims,\n\nthen, by the same token, he received ineffective assistance of appellate counsel\n\nbecause the matter of an involuntary plea was not assigned as error in his direct appeal.\n\nHowever, an application for reopening is the proper procedural mechanism by which to\n\nraise a claim of ineffective assistance of appellate counsel, pursuant to App.R. 26(B).\n\n {¶21} It is also worth noting that post-conviction relief petitions were not filed in\n\nthese cases; thus, any conversation between appellant and his attorney that may\n\nsupport his claims of erroneous advice is simply not part of the record. See, e.g., State\n\nv. Bond, 2d Dist. No. 20674, 2005-Ohio-3665, ¶10 (“[i]t is well settled, however, that\n\nwhen an alleged error requires the presentation of evidence outside the record, it must\n\nbe raised in a petition for post-conviction relief rather than on direct appeal”).\n\n {¶22} Nonetheless, the contentions set forth in appellant’s Crim.R. 32.1 motions\n\nalso fail on their merits as there is no indication appellant received ineffective assistance\n\nof counsel at the plea bargain stage. Indeed, nothing in the record suggests the advice\n\nappellant received from his attorney was questionable “or inconsistent with counsel’s\n\nduty to zealously represent” appellant. See State v. Corradetti, 11th Dist. No. 2012-L-\n\n006, 2012-Ohio-5225, ¶13. Additionally, nothing in the record suggests appellant’s\n\n\n\n\n 6\n\fpleas were somehow coerced. Rather, as indicated by the record of the plea-hearing\n\ncolloquy, the pleas were entered knowingly, intelligently, and voluntarily. Specifically,\n\nthe court advised appellant of the rights he would waive by entering guilty pleas and\n\nexplained the nature of the charges and the maximum penalties appellant could face.\n\nAppellant stated he understood the rights he was waiving and the prospective nature of\n\nhis sentence. Appellant also affirmed he was satisfied with his trial counsel’s\n\nrepresentation. Further, the state recited the factual basis for the charges, which\n\nappellant did not deny or refute after given the opportunity to do so.\n\n {¶23} As a final matter, though not framed as an individual assignment of error,\n\nappellant additionally contends the trial court should have held a hearing on his\n\nmotions. We take notice that appellant attempted to compel the trial court to hold an\n\nevidentiary hearing on his motions to withdraw his pleas via writ of procedendo, which\n\nwas dismissed on procedural grounds by this court, sua sponte, in Brody v. Lucci, 11th\n\nDist. No. 2011-L-139, 2012-Ohio-1132. However, a motion to withdraw a guilty plea\n\nmade after sentencing does not require a hearing unless “the facts alleged by the\n\ndefendant and accepted as true would require the trial court to permit withdrawal of the\n\nplea.” State v. Whiteman, 11th Dist. No. 2001-P-0096, 2003-Ohio-2229, ¶19. As set\n\nforth above, appellant’s contentions are barred by res judicata, and further, appellant\n\nhas failed to assert any facts that establish manifest injustice would occur if he were not\n\npermitted to withdraw his plea.\n\n {¶24} Thus, the trial court did not abuse its discretion in denying appellant’s\n\nmotions to withdraw his guilty pleas.\n\n {¶25} Appellant’s first and second assignments of error are without merit.\n\n\n\n\n 7\n\f {¶26} The judgments of the Lake County Court of Common Pleas are affirmed.\n\n\n\nMARY JANE TRAPP, J.,\n\nTHOMAS R. WRIGHT, J.,\n\nconcur.\n\n\n\n\n 8\n\f", "ocr": false, "opinion_id": 2707753 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
324,769
Duniway, Ely, Per Curiam, Solomon
1975-01-23
false
united-states-v-stanley-morton-bashaw
null
United States v. Stanley Morton Bashaw
UNITED STATES of America, Appellee, v. Stanley Morton BASHAW, Appellant
John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal., for appellant., William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee.
null
null
null
null
null
null
null
null
null
null
7
Published
null
<parties data-order="0" data-type="parties" id="b1262-7"> UNITED STATES of America, Appellee, v. Stanley Morton BASHAW, Appellant. </parties><docketnumber data-order="1" data-type="docketnumber" id="AJGL"> No. 74-2697. </docketnumber><br><court data-order="2" data-type="court" id="b1262-10"> United States Court of Appeals, Ninth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b1262-11"> Jan. 23, 1975. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b1262-21"> John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal., for appellant. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b1263-4"> <span citation-index="1" class="star-pagination" label="1205"> *1205 </span> William D. Keller, U. S. Atty., Los Angeles, Cal., for appellee. </attorneys><br><p data-order="6" data-type="judges" id="b1263-5"> Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge. <a class="footnote" href="#fn*" id="fn*_ref"> * </a> </p><div class="footnotes"><div class="footnote" data-order="7" data-type="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b1263-26"> Honorable Gus J. Solomon, Senior United States District Judge, Portland, Oregon, sitting by designation. </p> </div></div>
[ "509 F.2d 1204" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/509/509.F2d.1204.74--2697.html", "author_id": null, "opinion_text": "509 F.2d 1204\n UNITED STATES of America, Appellee,v.Stanley Morton BASHAW, Appellant.\n No. 74--2697.\n United States Court of Appeals,Ninth Circuit.\n Jan. 23, 1975.\n \n John K. Van De Kamp, Federal Public Defender, Los Angeles, Cal., for appellant.\n William D. Keller, U.S. Atty., Los Angeles, Cal., for appellee.\n Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, District Judge.*\n OPINION\n PER CURIAM:\n \n \n 1\n In a jury trial, Bashaw was convicted on two charges of having unlawfully sold government property, violations of 18 U.S.C. &#167; 641. On this appeal, Bashaw makes two contentions: (1) That the District Court erred in refusing to grant a mistrial because of the prosecutor's inquiry of Bashaw, while a witness in his own behalf, 'Did you recently plead in state court to possession of drugs?' (2) Egregious error by the prosecutor in a comment, made during summation 'that the defendant's evidence doesn't meet its burden of showing the defendant did not commit the crime charged.'\n \n \n 2\n Germane to the first contention is that the prosecutor was apparently not aware that the state charge was a misdemeanor and that the proceedings therein had not terminated. When the mistrial motion was made following the question, the district judge immediately and firmly admonished the jury that the question should be entirely disregarded.\n \n \n 3\n Likewise, when objection was made to the above quoted portion of the prosecutor's summation, the district judge immediately and properly instructed the jury that it 'must not accept the statements of counsel as to the law.' Thereafter, the court carefully instructed the jury that it rested upon the prosecution to prove Bashaw's guilt beyond a reasonable doubt.\n \n \n 4\n We do not condone the prosecutor's conduct. In fact, we condemn it, and overzeal on the part of a counsel for the Government of the United States affords no legitimate excuse for his prosecutorial misconduct. In the light of the prompt and careful curative instructions of the district judge, however, and in light of the further fact that the evidence of Bashaw's guilt was overwhelming, we are impelled to the conclusion that the prosecutor's misconduct was legally harmless and that the judgment of conviction should be, and it hereby is,\n \n \n 5\n Affirmed.\n \n \n \n *\n Honorable Gus J. Solomon, Senior United States District Judge, Portland, Oregon, sitting by designation\n \n \n ", "ocr": false, "opinion_id": 324769 } ]
Ninth Circuit
Court of Appeals for the Ninth Circuit
F
USA, Federal
2,693,146
Hall
2013-09-13
false
in-re-jc
In re J.C.
In re J.C.
null
null
null
null
null
null
null
null
null
null
null
null
1
Published
null
null
[ "2013 Ohio 3937" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/2/2013/2013-ohio-3937.pdf", "author_id": 8098, "opinion_text": "[Cite as In re J.C., 2013-Ohio-3937.]\n\n\n\n\n IN THE COURT OF APPEALS OF OHIO\n SECOND APPELLATE DISTRICT\n MONTGOMERY COUNTY\n\n IN RE: :\n : Appellate Case No. 25608\n J.C. and D.P. :\n : Trial Court Nos. JC 1998-6524\n : Trial Court Nos. JC 2010-5852\n :\n : (Juvenile Appeal from\n : (Common Pleas Court)\n :\n :\n ...........\n\n OPINION\n\n Rendered on the 13th day of September, 2013.\n\n ...........\n\nMATHIAS H. HECK, JR., by MATTHEW T. CRAWFORD, Atty. Reg. #0089205, Montgomery\nCounty Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box\n972, 301 West Third Street, Dayton, Ohio 45422\n Attorneys for Appellee, MCCS\n\nDAWN S. GARRETT, Atty. Reg. #55565, 70 Birch Alley, Suite 240, Dayton, Ohio 45440\n Attorney for Appellant, H.P.\n\n .............\n\nHALL, J.,\n\n {¶ 1} H.P. (Mother) appeals from the trial court’s January 11, 2013 orders awarding\n\nMontgomery County Children Services (MCCS) permanent custody of two of her children, J.C.\n\fand D.P.\n\n {¶ 2} Mother advances three assignments of error in this expedited appeal. First, she\n\ncontends the trial court discriminated against her based on a disability, in violation of the federal\n\nAmericans with Disabilities Act (ADA), when it terminated her parental rights without making a\n\nreasonable effort to accommodate her disability and without first seeking a planned permanent\n\nliving arrangement. Second, she claims the trial court erred in finding an award of permanent\n\ncustody to be in the children’s best interest when that disposition was not the only means of\n\nobtaining a legally secure placement. Third, she asserts that the evidence does not support an\n\naward of permanent custody to MCCS.\n\n {¶ 3} The record reflects that J.C. was born in 1997 and was adjudicated dependent in\n\n1998. Since that time, various parties have had custody of J.C. The trial court first granted legal\n\ncustody to the maternal grandparents. In 2008, the trial court granted legal custody to Mother. In\n\nDecember 2010, however, the trial court granted temporary custody to the maternal great aunt.\n\nIn January 2011, the trial court granted MCCS temporary custody of J.C. After multiple\n\nextensions of temporary custody, MCCS moved for permanent custody in August 2012.\n\n {¶ 4} D.P., the other child at issue, was born in 2006 and was adjudicated dependent in\n\n2010. MCCS obtained temporary custody. After temporary custody was extended, MCCS moved\n\nfor permanent custody in August 2012.\n\n {¶ 5} The trial court held a hearing on the two permanent-custody motions in October\n\n2012. Based on the evidence presented, it filed separate January 11, 2013 decisions awarding\n\nMCCS permanent custody of J.C. and D.P. This appeal followed.\n\n {¶ 6} In her first assignment of error, Mother contends that she has a disability within\n\nthe meaning of the ADA and that MCCS violated the ADA by failing to make reasonable efforts\n\f 3\n\n\nto accommodate her disability through its services and case-plan objectives and by failing to\n\npursue a planned permanent living arrangement rather than permanent custody. This argument\n\nlacks merit for at least four reasons.\n\n {¶ 7} First and foremost, an alleged violation of the ADA is not a defense to a\n\npermanent-custody motion. “Title II of the ADA prohibits public entities from discriminating\n\nbased on disability. The procedure for enforcing the ADA begins with the filing of a complaint\n\nwith a designated agency.” (Citations omitted.) In re C.W., J.W. & H.W., 1st Dist. Hamilton No.\n\nC-11032, 2011-Ohio-4756, ¶39. “If appropriate, the agency will refer the case to the Department\n\nof Justice[,] which may file suit in a federal district court. An alternative procedure is for a\n\nprivate individual to directly initiate an action, with or without waiting for the federal\n\nadministrative procedure to run its course.” (Citations omitted.) Id. “Ohio courts have refused to\n\napply the ADA so as to provide a defense to individuals in permanent-custody actions initiated by\n\npublic children-services agencies.” Id. at ¶40 (citing cases from the Fourth, Ninth, and Twelfth\n\nappellate districts). We join these courts in finding “that an alleged violation of the ADA by a\n\npublic children-services agency may not be asserted as a defense in a permanent-custody action\n\nbrought by that agency.”1 Id. at ¶41.\n\n {¶ 8} Second, Mother failed to allege a violation of the ADA in the proceedings below.\n\nAs a result, she has waived all but plain error, which does not exist on the record before us.\n\n\n 1\n The only Ohio case law Mother cites supporting the ADA’s applicability as a defense to a permanent-custody motion is In re\n Burrows, 4th Dist. Athens No. 95CA1698, 1996 WL 309979 (May 30, 1996). In that case, the Fourth District “assum[ed] without deciding”\n that the ADA applied. Id. at *3. In a more recent case, however, the Fourth District concluded that the ADA did not provide a defense to a\n permanent-custody motion. See In re Harmon, 4th Dist. Scioto No. 00 CA 2693, 2000 WL 1424822, *12 (Sept. 25, 2000) (“We do not believe\n that a failure to comply with the ADA serves as a basis for invalidating an award of permanent custody. Rather, the ADA appears to\n contemplate a separate procedure for its enforcement.”).\n\f 4\n\n\n {¶ 9} Third, Mother has not demonstrated that she has a disability within the meaning\n\nof the ADA. The legislation provides that the term “disability” means (1) “a physical or mental\n\nimpairment that substantially limits one or more major life activities,” (2) “a record of such an\n\nimpairment,” or (3) “being regarded as having such an impairment.” 42 U.S.C. 12102. Here\n\nMother has depression and a mood disorder. She shows evidence of a narcissistic and histrionic\n\npersonality. She scored in the average to low-average range on various achievement and\n\nintelligence tests. She also was found to lack some self awareness and to exercise limited\n\njudgment. (Tr. Vol. I at 67-72, 87-88). Whether these limitations establish a “disability” under\n\nthe ADA is far from clear. Therefore, Mother could not demonstrate plain error even if the ADA\n\ndid provide a potential defense to a permanent-custody motion.\n\n {¶ 10} Fourth, assuming arguendo that Mother’s limitations do qualify as a disability\n\nunder the ADA, the record reveals that MCCS made reasonable efforts to accommodate her.\n\nMCCS developed a case plan and repeatedly worked with Mother to satisfy it. Among other\n\nthings, the agency referred her numerous times for parenting classes, psychological evaluations,\n\nand counseling. Despite regular assistance, Mother largely failed to follow through and did not\n\ncome close to satisfying her case plan. On appeal, she argues broadly that MCCS did not attempt\n\nto accommodate her. She fails to articulate, however, what accommodations should have been\n\nprovided or how they would have made a difference. The only thing she mentions is the agency’s\n\nfailure to seek a planned permanent living arrangement. But MCCS had no legal obligation to\n\nseek a planned permanent living arrangement before moving for permanent custody. See, e.g., In\n\nre D.J., 12th Dist. Butler No. CA2008-06-142, 2008-Ohio-5424, ¶12; In re A.B., 110 Ohio St.3d\n\n230, 2006-Ohio-4359, 852 N.E.2d 1187, ¶34-36. For the foregoing reasons, Mother’s first\n\f 5\n\n\nassignment of error is overruled.\n\n {¶ 11} In her second assignment of error, Mother claims the trial court erred in finding\n\nan award of permanent custody to be in the children’s best interest when that disposition was not\n\nthe only means of obtaining a legally secure placement. In her third assignment of error, Mother\n\nasserts that the evidence does not support an award of permanent custody to MCCS. Because\n\nthese assignments of error are similar, we will consider them together.\n\n {¶ 12} This court recently set forth the standards governing permanent-custody\n\ndeterminations as follows:\n\n R.C. 2151.414 establishes a two-part test for courts to apply when\n\n determining a motion for permanent custody to a public services agency. The\n\n statute requires the court to find, by clear and convincing evidence, that: (1)\n\n granting permanent custody of the child to the agency is in the best interest of the\n\n child; and (2) either the child (a) cannot be placed with either parent within a\n\n reasonable period of time or should not be placed with either parent if any one of\n\n the factors in R.C. 2151.414(E) are present; (b) is abandoned; (c) is orphaned and\n\n no relatives are able to take permanent custody of the child; or (d) has been in the\n\n temporary custody of one or more public or private children services agencies for\n\n twelve or more months of a consecutive twenty-two month period. * * *\n\n R.C. 2151.414(D) directs the trial court to consider all relevant factors\n\n when determining the best interest of the child, including but not limited to: (1)\n\n the interaction and interrelationship of the child with the child’s parents, relatives,\n\n foster parents and any other person who may significantly affect the child; (2) the\n\f 6\n\n\n wishes of the child; (3) the custodial history of the child, including whether the\n\n child has been in the temporary custody of one or more public children services\n\n agencies or private child placing agencies for twelve or more months of a\n\n consecutive twenty-two-month period; (4) the child’s need for a legally secure\n\n permanent placement and whether that type of placement can be achieved without\n\n a grant of permanent custody to the agency; and (5) whether any of the factors in\n\n R.C. 2151.414(E)(7) through (11) are applicable.\n\n In re S.J., 2d Dist. Montgomery No. 25550, 2013-Ohio-2935, ¶14-15.\n\n {¶ 13} Here the trial court made the findings required to award MCCS permanent\n\ncustody. With regard to both children, the trial court found, by clear and convincing evidence,\n\nthat they could not be placed with either parent within a reasonable time and that an award of\n\npermanent custody was in the children’s best interest. We see no error in these determinations,\n\nwhich enjoy ample evidentiary support.\n\n {¶ 14} As a threshold matter, we note that neither child’s father has challenged the trial\n\ncourt’s permanent-custody determination. The trial court found that J.C.’s father was unknown\n\nand that the location of D.P’s father, who has a pending warrant for his arrest on a rape charge,\n\nwas unknown. With regard to Mother, the record reflects that the children most recently were\n\nremoved from her care in 2010 due to a lack of supervision, a lack of food, and poor home\n\nconditions. (Tr. Vol. II at 12-13). The lack of supervision involved D.P. and another sibling, J.P.,\n\nwandering around the neighborhood naked and dirty. (Id. at 8). MCCS developed a case plan to\n\naddress its concerns. As amended, the plan included requirements for Mother to obtain suitable\n\nhousing and income, to complete parenting and anger-management classes, to undergo\n\f 7\n\n\npsychological and mental-health assessments, and to follow through with visitation and all other\n\nrecommendations. (Id. at 16). The agency went over the case plan with Mother monthly to review\n\nher objectives and what she needed to do. (Id. at 15). Despite those efforts, Mother did not come\n\nclose to meeting her objectives.\n\n {¶ 15} At the time of the permanent-custody hearing, Mother was homeless and residing\n\nin a temporary shelter that could not accommodate children. (Id. at 17, 22). Prior to that\n\narrangement, she had spent time in at least two other shelters. (Id. at 20-21). When the case plan\n\nwas drafted in 2010, Mother had no income. (Id. at 22). She still lacked any income at the time of\n\nthe October 2012 permanent-custody hearing. (Id. at 22, 25). Although Mother did participate in\n\nsome classes and assessments, she failed to follow through with all requirements. Specifically,\n\nshe completed only six of eleven sessions of a parenting class. (Id. at 29). She also failed to\n\ncomplete anger-management classes and failed to complete required mental-health counseling.\n\n(Id. at 31-33, 35-37). With regard to visitation, Mother had attended only a small number of the\n\nscheduled weekly sessions between January 1, 2012, and the October 2012 hearing. (Id. at 51).\n\nHer last visit before the hearing took place on May 23, 2012. (Id.). A clinical psychologist who\n\nexamined Mother opined that “she was going to have a lot of significant difficulty in being able\n\nto parent her children consistently on a day-to-day basis.” (Tr. Vol. I at 87).\n\n {¶ 16} The evidence before us clearly and convincingly supports a finding that J.C. and\n\nD.P. cannot be placed with either parent within a reasonable time because “[f]ollowing the\n\nplacement of the [children] outside the [children’s] home and notwithstanding reasonable case\n\nplanning and diligent efforts by the agency to assist the parents to remedy the problems that\n\ninitially caused the [children] to be placed outside the home, the parent has failed continuously\n\f 8\n\n\nand repeatedly to substantially remedy the conditions causing the [children] to be placed outside\n\nthe [children’s] home.” R.C. 2151.414(E)(1).\n\n {¶ 17} The record also supports the trial court’s finding that an award of permanent\n\ncustody is in the children’s best interest. Perhaps the most significant factor is the children’s\n\ninteraction with Mother and others. The record reflects that D.P. is well bonded with his\n\nlong-term foster parents, who desire to adopt him. (Tr. Vol. I at 153). D.P. is receiving treatment\n\nfor his special behavioral, emotional, and educational needs and is making good progress. (Id. at\n\n136-145). The record contains evidence that neither J.C. nor D.P. is bonded with Mother. (Id. at\n\n84-85). J.C. in particular seemed “very detached” in Mother’s presence. (Id. at 85). J.C. also has\n\nemotional, behavioral, and mental-health issues that are being dealt with in a residential treatment\n\nfacility. (Tr. Vol. II at 56). MCCS anticipates J.C. being returned to foster care with a longer-term\n\ngoal of adoption. (Id. at 58). The record contains evidence that both children are adoptable. (Id. at\n\n58, 60).\n\n {¶ 18} The record also reflects that D.P. has been in the temporary custody of MCCS for\n\ntwelve or more months of a consecutive twenty-two-month period, which is a relevant\n\nbest-interest factor. As for J.C., she had been in the temporary custody of MCCS since January\n\n2011. Before that, she had been in the temporary custody of a relative. The children’s need for a\n\nlegally secure placement is a best-interest factor militating in favor of permanent custody. The\n\nrecord demonstrates that a legally secure placement cannot be achieved without a grant of\n\npermanent custody to MCCS. Mother has not completed her case plan and does not appear close\n\nto being able to regain custody. D.P.’s foster parents are qualified to adopt him and are waiting to\n\ndo so. J.C. is making progress in a residential facility and will be adoptable after her release.\n\f 9\n\n\n {¶ 19} The trial court also found that there are no relatives or others willing to accept\n\nlegal custody of the children. Although Mother disputes this conclusion, the record contains\n\nevidence to support it. During the hearing, various potential legal custodians were discussed. An\n\nMCCS representative explained why none of them were viable candidates. (Tr. Vol. II at 61-69).\n\nOn appeal, Mother argues that J.C. could have been placed with a person named T.V. and that\n\nD.P. could have been placed with a couple, A.M. and D.M. MCCS reasonably found T.V.\n\nunsuitable, however, given her own recent history with a children-services agency and the fact\n\nthat she recently had been reunified with her own children. (Id. at 62). As for A.M. and D.M., the\n\nrecord contains evidence that they reported no longer being interested. (Id. at 66, 77). Unlike\n\nD.P.’s long-term foster parents, A.M. and D.M. also had never even seen D.P. and did not\n\nparticipate in the hearing. (Id. at 72, 113, 115). Having reviewed the record, we cannot say that\n\nthe trial court erred in finding, by clear and convincing evidence, that an award of permanent\n\ncustody to MCCS was in the children’s best interest.\n\n {¶ 20} In arguing to the contrary, Mother repeatedly suggests that the agency was\n\nrequired to seek a planned permanent living arrangement in lieu of permanent custody. We\n\ndisagree. “A planned permanent living arrangement, formerly called long-term foster care, ‘is an\n\nalternative form of custody in which the child is placed in a foster home or institution, with the\n\nintention that the child will remain in that home or institution until he is no longer in the county\n\nchild services system.’” Miller v. Greene Cty. Children Serv. Bd., 162 Ohio App.3d 416,\n\n2005-Ohio-4035, 833 N.E.2d 805, ¶20 (2d Dist.), quoting In re D.B., 8th Dist. Cuyahoga No.\n\n81421, 2003-Ohio-3521, ¶6. “‘A PPLA does not sever the parental bonds as permanent custody\n\ndoes, but it also does not provide the child with a legally permanent placement.’” Id., quoting In\n\f 10\n\n\nre D.B. at ¶6. The Ohio Supreme Court has characterized a planned permanent living\n\narrangement as a “last resort.” In re A.B., 110 Ohio St.3d 230, 2006-Ohio-4359, 852 N.E.2d\n\n1187, ¶36. Such an arrangement lacks the permanency and stability that foster children need. Id.\n\nat ¶34-36. Before seeking a planned permanent living arrangement, a children-services agency\n\nmust demonstrate that it has tried or considered all other possible dispositions. Id. at ¶36.\n\n {¶ 21} Here MCCS chose to pursue another possible disposition—permanent\n\ncustody—and it was not prohibited from doing so. Notably, in In re A.B., the Ohio Supreme\n\nCourt reversed the placement of a child in a planned permanent living arrangement where the\n\nchildren-services agency did not request that disposition and instead sought permanent custody.\n\nId. at ¶37; see also In re D.J., 12th Dist. Butler No. CA2008-06-142, 2008-Ohio-5424, ¶12\n\n(finding that a children-services agency “had no obligation” to request a planned permanent\n\nliving arrangement instead of permanent custody). Mother’s second and third assignments of\n\nerror are overruled.\n\n {¶ 22} The judgment of the Montgomery County Common Pleas Court, Juvenile\n\nDivision, is affirmed.\n\n .............\n\nFAIN, P.J., and DONOVAN, J., concur.\n\n\n\nCopies mailed to:\n\nMathias H. Heck\nMatthew T. Crawford\nDawn S. Garrett\nHon. Nick Kuntz\n\f", "ocr": false, "opinion_id": 2693146 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
761,887
null
1998-10-13
false
joseph-a-wade-patricia-a-wade-v-metropolitan-life-
null
Joseph A. Wade, Patricia A. Wade v. Metropolitan Life Insurance Company
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "168 F.3d 480" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/168/168.F3d.480.97-1722.html", "author_id": null, "opinion_text": "168 F.3d 480\n Joseph A. Wade, Patricia A. Wadev.Metropolitan Life Insurance Company\n NO. 97-1722\n United States Court of Appeals,Third Circuit.\n October 13, 1998\n \n 1\n Appeal From: E.D.Pa.\n \n \n 2\n Affirmed.\n \n ", "ocr": false, "opinion_id": 761887 } ]
Third Circuit
Court of Appeals for the Third Circuit
F
USA, Federal
1,417,829
Mitchell
1999-07-23
false
state-v-mcclendon
McClendon
State v. McClendon
STATE OF NORTH CAROLINA v. PAUL DENNIS McCLENDON, JR.
Michael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State. , Locke T. Clifford and Walter L. Jones for defendant-appellant. , Mebane Rash Whitman on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.
null
null
null
null
null
null
null
null
null
null
77
Published
null
<parties id="b682-8"> STATE OF NORTH CAROLINA v. PAUL DENNIS McCLENDON, JR. </parties><br><docketnumber id="b682-9"> No. 392A98 </docketnumber><decisiondate id="AdO"> (Filed 23 July 1999) </decisiondate><br><attorneys id="b684-5"> <span citation-index="1" class="star-pagination" label="632"> *632 </span> <em> Michael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State. </em> </attorneys><br><attorneys id="b684-7"> <em> Locke T. Clifford and Walter L. Jones for defendant-appellant. </em> </attorneys><br><attorneys id="b684-8"> <em> Mebane Rash Whitman on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae. </em> </attorneys>
[ "517 S.E.2d 128", "350 N.C. 630" ]
[ { "author_str": "Mitchell", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5298, "opinion_text": "\n517 S.E.2d 128 (1999)\n350 N.C. 630\nSTATE of North Carolina\nv.\nPaul Dennis McCLENDON, Jr.\nNo. 392A98.\nSupreme Court of North Carolina.\nJuly 23, 1999.\n*130 Michael F. Easley, Attorney General, by William B. Crumpler, Assistant Attorney General, for the State.\nLocke T. Clifford and Walter L. Jones, Greensboro, for defendant-appellant.\nMebane Rash Whitman, Raleigh, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, amicus curiae.\nMITCHELL, Chief Justice.\nIn June and July 1996, defendant was indicted for trafficking in marijuana by transporting more than fifty pounds but less than one hundred pounds, trafficking in marijuana by possession of more than fifty pounds but less than one hundred pounds, and conspiracy to traffic in a controlled substance by possession and transportation. Defendant moved to suppress evidence found as a result of a search of his vehicle. The trial court denied defendant's motion to suppress. Defendant subsequently pled guilty to all of the charges pursuant to a plea agreement in which he reserved the right to appeal the denial of his motion to suppress. All of the charges were consolidated for judgment, and the trial court sentenced defendant to a term of twenty-five to thirty-five months' imprisonment and imposed a fine of $15,000. The Court of Appeals, with one judge dissenting, affirmed the trial court. Defendant appealed to this Court as a matter of right based on the dissent below. On 30 December 1998, we also allowed his petition for discretionary review of additional issues.\nThe testimony before the trial court at the suppression hearing tended to show the following: On 21 February 1996, Sergeant T.L. Cardwell of the North Carolina Highway Patrol was on duty patrolling Interstate 85 in Greensboro. He noticed two cars traveling at a speed of seventy-two miles per hour, seven miles over the posted speed limit. One vehicle was a minivan. Following closely behind it was a station wagon driven by defendant. Sergeant Cardwell drove his car alongside the station wagon and made eye contact with defendant, who decreased his speed. Sergeant Cardwell did the same thing with the driver of the minivan, but that driver did not slow down. Sergeant Cardwell then radioed for assistance, and Trooper Brian Lisenby responded. The officers stopped both vehicles. At the suppression hearing, Sergeant Cardwell gave three reasons for stopping the vehicles: (1) they were in violation of the posted speed limit; (2) defendant was following the minivan too closely; and (3) Sergeant Cardwell had formed the opinion that the lead vehicle was a decoy vehicle intended to distract police attention from the second vehicle, the station wagon driven by defendant.\nSergeant Cardwell questioned the driver of the minivan, Tony Contreras, who had a Texas driver's license and said that the minivan belonged to his brother. Contreras said he was meeting his brother at the Greensboro airport so that they could visit some area furniture stores in search of supplies for the furniture store they planned to open in Texas. Contreras could not name any of the stores that they were supposed to visit, nor did he have an explanation for why he drove to North Carolina while his brother took a flight. He denied traveling with defendant. Sergeant Cardwell issued a warning ticket charging Contreras with speeding and then searched the vehicle after Contreras signed a consent form.\nAt the same time, Trooper Lisenby was busy questioning defendant. Lisenby testified that defendant appeared nervous, did not make eye contact, and was breathing heavily. Defendant produced his Tennessee driver's license and the title to the station wagon, but he did not have the registration for the vehicle. Defendant said that his girlfriend owned the car, but he could not give Trooper Lisenby her name even though the address on defendant's driver's license and the address on the title to the station wagon *131 were the same. Defendant also denied knowing or traveling with the driver of the minivan.\nAt this point, Trooper Lisenby told defendant to get into his patrol car, where the questioning continued. Defendant explained that he had come from Georgia and was on his way to Greensboro. Trooper Lisenby testified that as defendant answered the questions, his nervousness increased. Defendant was \"fidgety,\" evasive with his answers, and appeared very uncomfortable. When questioned again about the name on the car's registration and his girlfriend's name, defendant mumbled something, which Trooper Lisenby thought sounded like \"Anna.\" Although the name Anna did not appear on the title to the station wagon, a radio check by Lisenby revealed no problems with the registration of the station wagon or defendant's driver's license. The name on the title to the station wagon was Jema Ramirez.\nFollowing the questioning, Trooper Lisenby radioed Sergeant Cardwell and gave him the information about defendant. Cardwell told Lisenby to issue defendant a warning ticket for speeding and following too closely. Trooper Lisenby did so, then asked defendant if he had weapons or narcotics in the vehicle. Defendant sighed deeply, chuckled nervously, looked down, and finally muttered \"No.\" Trooper Lisenby asked defendant for permission to search his vehicle which defendant refused to give. Lisenby then left the patrol car and gave this information to Sergeant Cardwell, who got in the patrol car and continued to question defendant. Sergeant Cardwell testified that defendant was sweating and that his breathing was rapid. When asked by Cardwell, defendant again refused to give permission to search his vehicle.\nSergeant Cardwell called the High Point Police Department to secure a drug detecting dog. The dog was permitted to examine the exterior of the station wagon to detect any odor of controlled substances and \"alerted\" toward the rear of the vehicle. The dog was then placed inside the vehicle and alerted the officers to the rear cargo floor where the spare tire is usually stored. Sergeant Cardwell searched there and found marijuana. Defendant was advised of his rights and signed a Miranda rights form. From the time defendant was issued a warning citation until the time the canine unit arrived, approximately fifteen to twenty minutes had elapsed.\nIn affirming the trial court's denial of defendant's motion to suppress, the majority in the Court of Appeals concluded that Sergeant Cardwell had probable cause to stop defendant's vehicle and that the questioning of defendant by Trooper Lisenby did not exceed the permissible scope of the traffic stop. The Court of Appeals further concluded that, \"based on the totality of the circumstances here, the detention of the defendant beyond the issuance of the warning ticket was justified and that no violation of defendant's constitutional rights occurred.\" State v. McClendon, 130 N.C.App. 368, 378, 502 S.E.2d 902, 908 (1998). The dissent in the Court of Appeals contended that because reasonable suspicion that criminal activity was afoot did not exist, the officers were not justified in detaining defendant for further questioning after he was given the warning citation. For the reasons that follow, we affirm the decision of the majority in the Court of Appeals.\nAs a preliminary matter, we address the question of whether the rule set out in Whren v. United States, 517 U.S. 806, 116 S. Ct. 1769, 135 L. Ed. 2d 89 (1996), is also required by the North Carolina Constitution. In Whren, the United States Supreme Court held that the temporary detention of a motorist upon probable cause to believe that he has violated a traffic law is not inconsistent with the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist for the violation. Id. This decision established that police action related to probable cause should be judged in objective terms, not subjective terms. Provided objective circumstances justify the action taken, any \"ulterior motive\" of the officer is immaterial. As the Court of Appeals stated below, Whren conclusively established that the inquiry is no longer what a reasonable officer would do but what a reasonable officer could do, and in effect put an end to issues involving whether the existence of probable cause *132 for a traffic stop has been used by officers as a pretext for stopping defendant for other reasons. McClendon, 130 N.C.App. at 374, 502 S.E.2d at 906.\nDefendant first contends that Article I, Section 20 of the North Carolina Constitution affords broader protection to citizens than the Fourth Amendment, and therefore, the Whren rule should not be applied. As we said in State v. Arrington, 311 N.C. 633, 319 S.E.2d 254 (1984),\nthe language of Article [I], Section 20 of the Constitution of North Carolina differs markedly from the language of the Fourth Amendment to the Constitution of the United States....\nWhether rights guaranteed by the Constitution of North Carolina have been provided and the proper tests to be used in resolving such issues are questions which can only be answered with finality by this Court.\nId. at 643, 319 S.E.2d at 260. Furthermore, we are \"not bound by opinions of the Supreme Court of the United States construing even identical provisions in the Constitution of the United States.\" Id. at 642, 319 S.E.2d at 260.\nHowever, we find the reasoning of the Supreme Court in Whren to be compelling, and we adopt it here. Moreover, this Court has previously recognized the principle that, in general, police action related to probable cause should be judged in objective terms, not subjective terms. See State v. Peck, 305 N.C. 734, 741, 291 S.E.2d 637, 641-42 (1982) (\"The officer's subjective opinion is not material.... The search or seizure is valid when the objective facts known to the officer meet the standard required.\"). Therefore, for situations arising under our state Constitution, we hold that an objective standard, rather than a subjective standard, must be applied to determine the reasonableness of police action related to probable cause.\nDefendant contends that the stop of his vehicle for the stated purpose of a speeding violation was a mere pretext for investigating him for the possession of illegal drugs. Defendant argues that such a pretextual traffic stop by Sergeant Cardwell violated his rights under the North Carolina Constitution. However, the officer's subjective motive for the stop is immaterial. The facts found by the trial court from the evidence presented at the suppression hearing established conclusively that Sergeant Cardwell had probable cause to stop the station wagon driven by defendant, as well as the minivan driven by Contreras. Both vehicles were exceeding the posted speed limit, in violation of N.C.G.S. § 20-141, and defendant's vehicle was also following too closely, which is a violation of N.C.G.S. § 20-152. Because of the violations of these traffic laws, the officers had probable cause to stop the vehicles and to issue a warning ticket to each driver. See N.C.G.S. § 15A-302(b) (1997); N.C.G.S. § 20-183(b) (Supp.1998). We therefore conclude that the officers in this case were justified in stopping defendant's vehicle.\nHaving established that the initial stop of defendant's vehicle and the temporary detention of defendant were proper, we next address the question of whether the further detention of defendant from the time the warning ticket was issued until the time the canine unit arrived went beyond the scope of the stop and was unreasonable. As we have stated previously, Article I, Section 20 of our North Carolina Constitution, like the Fourth Amendment, protects against unreasonable searches and seizures. Garner, 331 N.C. at 506, 417 S.E.2d at 510. In order to further detain a person after lawfully stopping him, an officer must have reasonable suspicion, based on specific and articulable facts, that criminal activity is afoot. See Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412, 2416, 110 L. Ed. 2d 301, 309 (1990) (\"[T]he `totality of the circumstances—the whole picture[—]' ... must be taken into account when evaluating whether there is reasonable suspicion.\") (quoting United States v. Cortez, 449 U.S. 411, 417, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)); State v. Watkins, 337 N.C. 437, 441, 446 S.E.2d 67, 70 (1994) (whether a basis for reasonable suspicion exists is to be determined from the totality of the circumstances). After a lawful stop, an officer may ask the detainee questions in order to obtain information confirming or dispelling the officer's suspicions. See *133 Berkemer v. McCarty, 468 U.S. 420, 104 S. Ct. 3138, 82 L. Ed. 2d 317 (1984); State v. Jones, 96 N.C.App. 389, 386 S.E.2d 217 (1989), appeal dismissed and disc. rev. denied, 326 N.C. 366, 389 S.E.2d 809 (1990). Here, Trooper Lisenby lawfully stopped defendant and asked for his driver's license and registration. Defendant could not find the registration, and instead produced the title to the car. The title, however, was in the name of Jema Ramirez, instead of defendant's name. Trooper Lisenby was entitled to inquire further regarding the ownership of the car to determine whether it was stolen. It was defendant's responses to questions asked during such inquiry that aroused Lisenby's, and later Sergeant Cardwell's, suspicions that criminal activity was afoot.\nUpon reviewing the evidence and the trial court's findings, we find several factors that gave rise to reasonable suspicion under the totality of the circumstances. First, when asked who owned the car, defendant said his girlfriend, but would not give Trooper Lisenby her name. It was only after defendant had been asked several times that he said his girlfriend \"Anna\" owned the car. When Trooper Lisenby inquired \"Anna?\" defendant said \"I think so.\" However, \"Anna\" was not the name listed on the title as the owner of the car. Second, although defendant seemed unsure of who owned the car, the address of the owner listed on the title and the address on defendant's driver's license were the same, which would seem to indicate that they both lived in the same residence. Third, defendant was extremely nervous, sweating, breathing rapidly, sighing heavily, and chuckling nervously in response to questions. He also refused to make eye contact when answering questions. We conclude that these facts, when viewed in the totality of the circumstances, allowed the officers to form a reasonable suspicion that criminal activity was afoot. See State v. Butler, 331 N.C. 227, 415 S.E.2d 719 (1992) (nervousness was a factor considered in determining that grounds existed for forming a reasonable suspicion).\nThe dissent in the Court of Appeals found this Court's decision in State v. Pearson, 348 N.C. 272, 498 S.E.2d 599 (1998), controlling, stating that \"evidence similar to that in the case at hand was insufficient to support a conclusion that the officers were justified in detaining the drivers.\" McClendon, 130 N.C.App. at 379, 502 S.E.2d at 909 (Wynn, J., dissenting). We recognize that Pearson could be so construed. Therefore, we revisit Pearson now in order to clarify its meaning and to illustrate how the totality of the circumstances in that case are distinguishable from those in the case sub judice.\nIn Pearson, there was no conflict concerning the validity of the search of the defendant's vehicle—the defendant gave his valid consent to that search. We declined, however, to extend this consent to include consent to a search of the defendant's person. We concluded that the officer did not have the requisite reasonable suspicion needed for the search of the defendant's person. Pearson, 348 N.C. at 276-77, 498 S.E.2d at 601.\nIn Pearson, the defendant was driving below the posted speed limit and drifting back and forth within his lane. The officer stopped the defendant in order to determine if he was impaired. When the officer walked up to the car, the defendant appeared nervous. Although the officer noticed a faint odor of alcohol, he determined that the defendant was just tired, not impaired. While in the officer's car, the defendant told the officer that he had gotten little sleep the night before, as he and his girlfriend had been visiting her parents, who lived near the Virginia border. When the officer questioned the defendant's girlfriend, however, she said they had been visiting the defendant's parents near New Jersey. Although there was no sign of any weapons or drugs in the defendant's car, the officer asked him to sign a consent form allowing a search of the car. The defendant did so, whereupon the officer searched the car and found nothing. The defendant was then told that standard procedure required that he be searched as well. That search of the defendant's person revealed small bags of marijuana hidden in his crotch area. This Court found that the conflicting stories of the defendant and his girlfriend and the apparent nervousness of the defendant were not enough to support a *134 reasonable suspicion that criminal activity was afoot.\nDefendant stresses the fact that in Pearson, we said that \"[t]he nervousness of the defendant is not significant. Many people become nervous when stopped by a state trooper.\" Id. at 276, 498 S.E.2d at 601. Although the quoted language from Pearson is couched in rather absolute terms, we did not mean to imply there that nervousness can never be significant in determining whether an officer could form a reasonable suspicion that criminal activity is afoot. Nervousness, like all other facts, must be taken in light of the totality of the circumstances. It is true that many people do become nervous when stopped by an officer of the law. Nevertheless, nervousness is an appropriate factor to consider when determining whether a basis for a reasonable suspicion exists. See Butler, 331 N.C. 227, 415 S.E.2d 719; see also United States v. Perez, 37 F.3d 510, 514 (9th Cir.1994) (nervousness and sweating profusely were among the factors giving rise to reasonable suspicion); United States v. Nikzad, 739 F.2d 1431, 1433 (9th Cir.1984) (fact that defendant was nervous and failed to make eye contact gave rise to reasonable suspicion).\nIn Pearson, the nervousness of the defendant was not remarkable. Even when taken together with the inconsistencies in the statements of the defendant and his girlfriend, it did not support a reasonable suspicion. In the case before us, however, defendant exhibited more than ordinary nervousness; defendant was fidgety and breathing rapidly, sweat had formed on his forehead, he would sigh deeply, and he would not make eye contact with the officer. This, taken in the context of the totality of the circumstances found to exist by the trial court, gave rise to a reasonable suspicion that criminal activity was afoot.\nHaving determined that Sergeant Cardwell did have the requisite reasonable suspicion needed to detain defendant further, we turn to examine whether the duration of that detention was reasonable. As we noted previously, the time that elapsed between the issuance of the warning ticket and the arrival of the canine unit was only fifteen to twenty minutes. We conclude that this was not unreasonable under the circumstances. The officers acted quickly and diligently to obtain the canine unit, and upon its arrival, they promptly put the drug detection dog to work. See United States v. Sharpe, 470 U.S. 675, 688, 105 S. Ct. 1568, 1576, 84 L. Ed. 2d 605, 617 (1985) (\"We reject the contention that a 20-minute stop is unreasonable when the police have acted diligently....\"). The Court of Appeals was correct in affirming the trial court's denial of defendant's motion to suppress.\nFor the reasons stated herein, we affirm the decision of the Court of Appeals.\nAFFIRMED.\n", "ocr": false, "opinion_id": 1417829 } ]
Supreme Court of North Carolina
Supreme Court of North Carolina
S
North Carolina, NC
521,912
null
1989-05-04
false
ernest-rivere-v-offshore-painting-contractors-highlands-insurance
null
null
Ernest Rivere v. Offshore Painting Contractors, Highlands Insurance Company, Raymond Fabricators, Incorporated, the Hartford Insurance Company, and Director, Office of Workers' Compensation Programs, United States Department of Labor
null
null
null
null
null
null
null
null
null
null
null
20
Published
null
null
[ "872 F.2d 1187" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/872/872.F2d.1187.89-4273.html", "author_id": null, "opinion_text": "872 F.2d 1187\n 1990 A.M.C. 1816\n Ernest RIVERE, Petitionerv.OFFSHORE PAINTING CONTRACTORS, Highlands Insurance Company,Raymond Fabricators, Incorporated, the Hartford InsuranceCompany, and Director, Office of Workers' CompensationPrograms, United States Department of Labor, Respondents.\n No. 89-4273.\n United States Court of Appeals,Fifth Circuit.\n May 4, 1989.\n \n Daniel J. Nail, Triche, Sternfels &amp; Nail, Napoleonville, La., for Ernest Rivere.\n Joshua T. Gillelan, II, Solicitor of Labor, U.S. Dept. of Labor, Washington, D.C., for respondents.\n \n \n 1\n Kevin R. Tully, Paul G. Preston, Christovich &amp; Kearney, New Orleans, La., for Offshore &amp; Highlands Ins.\n \n \n 2\n Kathleen K. Charvet, Lance S. Ostendorf, McGlinchey, Stafford &amp; Mintz, New Orleans, La., for Raymond Fab. &amp; Hartford Ins.\n \n \n 3\n Linda Meekins, Benefits Review Bd., USDL, Washington, D.C., for other interested parties.\n \n \n 4\n Petition for Review of an Order of The Benefits Review Board.\n \n \n 5\n Before POLITZ, KING, and SMITH, Circuit Judges.\n \n POLITZ, Circuit Judge:\n \n 6\n Ernest Rivere petitions for this court's review of an order of the Benefits Review Board (BRB) which stayed the award of accrued compensation benefits entered by an administrative law judge (ALJ). He also seeks a stay of the proceedings on the merits before the BRB. For the reasons assigned, we grant review and vacate the orders of the BRB filed November 18, 1988 and March 29, 1989 granting Offshore Painting Contractors and Highlands Insurance Company a stay in the payment of the accrued benefits due and payable to Rivere under the ALJ's compensation order filed November 10, 1988. Assuming per arguenda that we have jurisdiction to do so, we decline, however, to stay the proceedings on the merits before the BRB.\n \n Factual Background\n \n 7\n The facts relevant to today's disposition, as reflected in filings by the various parties and discussed in the extended oral argument held on May 2, 1989, essentially are not in dispute. Rivere, a former sandblaster-painter, in early 1975 at the age of 42 suffered a totally disabling respiratory impairment. Compensation claims under the Louisiana statute initially were made by Rivere against Offshore Painting, his employer on fixed platforms on the Outer Continental Shelf for a period of three years ending December 1973, Raymond Fabricators, Incorporated, for whom he had worked for a brief period just before becoming disabled, and three interim, non-maritime employers. Thereafter, in 1979, Rivere filed claims under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. Secs. 901-950, as extended by the Outer Continental Shelf Lands Act, 43 U.S.C. Sec. 1333(b), against Offshore Painting and Raymond Fabricators.\n \n \n 8\n The claims were consolidated for hearing in 1984. In 1985 the ALJ awarded Rivere compensation for permanent total disability, payable by Raymond Fabricators, commencing January 1975 and continuing to date of order and thereafter. Raymond Fabricators appealed to the BRB and moved for a stay of the payment of compensation under 33 U.S.C. Sec. 921(b)(3). On August 23, 1985 the BRB entered an ex parte order staying payment of the accrued portion of the disability benefits. In a published opinion, Rivere v. Raymond Fabricators, Inc., 18 B.R.B.S. 6 (1985), the Board struck down 20 C.F.R. Sec. 802.105, the regulation issued by the Secretary of Labor governing the BRB's issuance of orders staying the payment of compensation benefits.1 The BRB opined that the \"irreparable injury\" requirement in section 21(b)(3) of the LHWCA, 33 U.S.C. Sec. 921(b)(3), was \"rather fluid and not easily circumscribed,\" and subject to the Board's \"exercise of discretion.\" 18 B.R.B.S. at 9. Exercising that discretion, the Board concluded that \"[u]pon consideration of the relative importance of the rights asserted and the importance of the stay, we find irreparable injury.\" Id.\n \n \n 9\n Nearly a year and a half later the Board issued its decision on the merits, affirming the ALJ's finding that Rivere was permanently totally disabled, but vacating the award of benefits and remanding to the ALJ for further proceedings. After completion of those proceedings on remand, on November 10, 1988 the ALJ entered the same award he had earlier granted in favor of Rivere, but this time he ordered that Offshore Painting and Highlands Insurance were liable for payment.\n \n \n 10\n Offshore and Highlands appealed to the Board and moved for a stay. They alleged no facts indicating any particular impact that payment of the accrued benefits would have on them but, rather, astutely argued to the BRB, in the Board's own prose, that upon \"consideration of the relative importance of the rights asserted and the importance of the stay,\" the stay should be granted. On November 18, 1988, by ex parte order the BRB \"found that irreparable injury will ensue to employer if it is required to pay, in full, back benefits due under this award,\" and stayed accrued benefits pending resolution of the appeal. The dissenting member of the Board pointedly declared:\n \n \n 11\n Petitioner requests extraordinary relief but has not established sufficient grounds to justify that relief. Petitioner has not demonstrated irreparable injury as it is required by Section 21(b)(3) of the Longshore and Harbor Workers' Compensation Act. Moreover, petitioner has not even attempted to demonstrate that it is likely to succeed on appeal.\n \n \n 12\n After receiving responses in opposition to the ex parte order from Rivere and Raymond Fabricators, on March 28, 1989 the BRB issued an order adhering to the stay. The instant petition for review seeking the vacating of that stay timely followed.\n \n Analysis\n 1. Jurisdiction\n \n 13\n Appropriately, we first examine our jurisdiction. Under section 21(c) of the LHWCA, 33 U.S.C. Sec. 921(c), \"[a]ny person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred.\" Typically, only a decision culminating the merits of the administrative proceedings is such a final order. Newpark Shipbuilding &amp; Repair, Inc. v. Roundtree, 723 F.2d 399 (5th Cir.) (en banc), cert. denied, 469 U.S. 818, 105 S.Ct. 88, 83 L.Ed.2d 35 (1984). The order before us obviously is not of that genre, but it is, nonetheless, \"final\" for purposes of our jurisdiction. The order is an appealable collateral order under the doctrine introduced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). To qualify as a collateral final order, the order must: (1) conclusively determine (2) an issue separate from the merits, and (3) be effectively unreviewable on appeal. Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984); Coopers &amp; Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978).\n \n \n 14\n The order before us conclusively determines that Rivere will not be paid the accrued benefits pending the appeal of the compensation award, and his right to receive the accrued sum without delay will not be reviewed if the award is vacated. That those two requirements are met is apparent. The second element of the triad test requires a closer look: Is Rivere's entitlement to payment of the accrued compensation benefits separate from the merits of the action? We conclude that Congress has indeed made Rivere's entitlement to payment of the accrued and continuing benefits separate from the ultimate decision on the merits.\n \n \n 15\n When Congress adopted the LHWCA in 1927 it made a policy decision, determined when a compensation order, then issued by a deputy commissioner, would become effective, and declared that \"payment of the amounts required by an award shall not be stayed\" pending review of the award. In so doing, Congress made the claimant's entitlement to payment of the compensation awarded separate from the ultimate resolution of the compensation claim. Congress vested the claimant with the right to immediate payment of benefits, in accordance with the compensation award, during the pendency of review of the award and without regard to its ultimate outcome.\n \n \n 16\n A quick scan of the legislative history reveals the congressional purpose. Congress was concerned about the disabled worker receiving benefits promptly after being found deserving of same. See generally Hearings on S. 3170 Before a Subcomm. of the Senate Judiciary Comm., 69th Cong., 1st Sess. 53, 101; Hearings on H.R. 9498 Before the House Judiciary Comm., 69th Cong., 1st Sess. 66-67, 94-95, 116. See also Hearings on S. 3170 Before a Subcomm. of the Senate Judiciary Comm., 69th Cong., 1st Sess. 53 (comments by committee chairman Senator Cummings in colloquy with an industry spokesman relative to compensation benefits being stayed pending appeal: \"How is the man to live in the meantime?\" and \"[I]t would be a pretty severe penalty upon a man who had been disabled to be deprived of his compensation pending an appeal that might run over four or five years.\").\n \n \n 17\n Offshore and Highlands cite Tideland Welding v. Office of Wkrs' Comp. Prgms., 817 F.2d 1211 (5th Cir.1987), for the proposition that we lack jurisdiction. That case is inapposite, for we were there asked to stay and review an order of the ALJ. We lack jurisdiction to review actions of the ALJ in the first instance. Under the congressionally-established format, the BRB is the appellate authority for the ALJ. We review the actions of the BRB. Counsel also cites Newpark Shipbuilding in their challenge to our jurisdiction. That case also is inapposite; it did not address the Cohen collateral order doctrine.\n \n 2. Irreparable injury\n \n 18\n Congress established an exception to the entitlement to immediate payment pending appeal. If the employer could demonstrate that \"irreparable injury would otherwise ensue,\" the 1927 Act authorized the federal district court to grant a stay of payment. 44 Stat. 1436, 33 U.S.C. Sec. 921 Hist. Note. However, the order of the court granting this extraordinary relief had to \"contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that such irreparable damage would result to the employer, and specifying the nature of the damage.\" Id.\n \n \n 19\n In 1972 the Benefits Review Board was established, composed of three members appointed by the Secretary of Labor. 33 U.S.C. Sec. 921(b)(1).2 The BRB was empowered by Congress to hear and determine appeals of compensation awards, now granted by ALJs. The mandate of the 1927 Act was continued unchanged: \"payment of the amounts required by an award shall not be stayed pending final decision\" of any appeal \"unless ordered by the Board,\" but such stays may not be issued \"unless irreparable injury would otherwise ensue to the employer or carrier.\" Id. Sec. 921(b)(3).\n \n \n 20\n This severely restricted authorization for the stay of compensation awards pending appeal has been maintained by the Congress despite persistent calls for change. The demonstration of irreparable injury was not intended by Congress, and has not been viewed by the courts as an exercise in semantics. That payment of compensation might pose a problem, or even cause serious difficulty is not enough to support a stay. Neither is the fact that the amount paid might be lost if the award is reversed on appeal. As we observed in Henry v. Gentry Plumbing &amp; Heating Co., 704 F.2d 863, 865 (5th Cir.1983), the limitations on the stay of compensation awards represent \"a legislative decision that--except in extreme circumstances of irreparable injury to the payer--it is preferable that an injured worker receive regular compensation, even that later determined to have been wrongly exacted and not recoverable by the payer, than that he be left without assistance until all amounts are finally determined.\" See also Lauzon v. Strachan Shipping Co., 782 F.2d 1217 (5th Cir.1985); Tidelands Marine Serv. v. Patterson, 719 F.2d 126, 129 (5th Cir.1983) (\"quick and inexpensive\" enforcement of awards, even pending review, is \"a theme central to the spirit, intent, and purposes of the LHWCA.\").\n \n \n 21\n An early decision by a district court, in what was then the Fifth Circuit, set the tone for the irreparable-injury requirement. The standard raised in Continental Casualty Co. v. Lawson, 2 F.Supp. 459, 461 (S.D.Fla.1932), rev'd on other grounds, 64 F.2d 802 (5th Cir.1933), has stood the test of time and the resistance of employers and insurers. Irreparable injury is demonstrated only when\n \n \n 22\n the compensation award may be too heavy for the employer [or insurer] to pay without practically taking all his property or rendering him incapable of carrying on his business, or ... by reason of age, sickness, or other circumstances [of the payer], a condition is created which would amount to irreparable injury.\n \n \n 23\n The Lawson court would not accept the impossibility of recoupment of the sums paid as the bellwether for irreparable injury. Nor do we.\n \n \n 24\n When Congress created the BRB it provided for judicial review of its orders and decisions by the several courts of appeals. Continuing the thrust of the 1927 Act, in the 1972 amendments establishing the BRB Congress authorized the courts of appeals to stay awards of compensation, but they may do so only under the same strictures. Stays may issue only upon a demonstration that the payer would suffer irreparable injury if payment were required pending appeal. Congress imposed on the reviewing appellate court the same requirement it had imposed on the district courts. If a stay is issued, the court must make a specific finding of irreparable injury, \"based upon evidence submitted to the court ... and specifying the nature of the damage.\" 33 U.S.C. Sec. 921(c).\n \n 3. The regulation\n \n 25\n When Congress restructured the compensation-awarding-and-review process in 1972 it made no change in the rule: once compensation payments are ordered they are to be paid; stays are to be charily granted, and then based only upon evidence which clearly demonstrates the irreparable injury. Moreover, the finding of irreparable injury and the specifics thereof must be memorialized in the order of the granting authority, whether a court or the BRB. The congressional committees reporting the 1972 revisions to 33 U.S.C. Sec. 921 stated in identical terms, without distinguishing between the courts and the BRB, that they\n \n \n 26\n d[id] not intend that the appellate process result in delay of payment of compensation. Initial awards are not to be stayed pending review proceedings except by specific order of the Board or the court based on a finding that irreparable injury would otherwise result to the [payer].\n \n \n 27\n S.Rep. No. 1125, 92d Cong., 2d Sess. 15 (1972); H.R.Rep. No. 92-1441, 92d Cong., 2d Sess. 12 (1972); 1972 U.S.Code Cong. &amp; Admin. News 4698, 4709-10.\n \n \n 28\n Promptly upon adoption of the 1972 amendments, the Secretary exercised his statutory authority and promulgated rules of practice and procedure governing the operation of the BRB, 20 C.F.R. Parts 801 and 802. These Parts include section 802.105, quoted supra, which the BRB viewed as inconsistent with the statute, 33 U.S.C. Sec. 921, and which it struck down in the earlier Rivere proceeding.\n \n \n 29\n We view 20 C.F.R. Sec. 802.105 as fully consistent with the statute upon which it is based, the predecessor statute, the legislative history, and the jurisprudential development. The BRB erred as a matter of law when it held otherwise. The BRB is subject to the terms of that regulation as promulgated by the Secretary.\n \n 4. The stay at bar\n \n 30\n The stay order entered by the BRB in the instant case is manifestly invalid. First and foremost, it is not consistent with the clear and express congressional mandate that \"[n]o stay shall be issued unless irreparable injury would otherwise ensue to the employer or carrier.\" 33 U.S.C. Sec. 921(b)(3). In support of their motion for the stay order, neither Offshore Painting nor Highlands Insurance even attempted to allege, much less prove, irreparable injury from the payment to Rivere of the accrued benefits. Oral argument disclosed why--there is no irreparable injury looming as a consequence of the payment. Payment of the accrued benefits is no more than a modest financial transaction which Highlands has hopes of retrieving in due course, and against which Raymond Fabricators' insurer intends to levy a lien for the compensation payments it has made pursuant to the initial award of the ALJ.\n \n \n 31\n Further, the stay order obviously fails to conform to the requirements of 20 C.F.R. Sec. 802.105. The BRB made no effort to justify its stay order thereunder; Offshore and Highlands made no effort to qualify their motion for stay thereunder. All erred.\n \n \n 32\n For these reasons, the petition for review is GRANTED and the orders of the BRB staying payment of the accrued benefits to Rivere are VACATED and ANNULLED.\n \n \n 33\n THE MANDATE SHALL ISSUE FORTHWITH.\n \n \n \n 1\n As promulgated by the Secretary of Labor, 20 C.F.R. Sec. 802.105 provides:\n (a) As provided in section 14(f) of the LHWCA and sections 415 and 422 of the Black Lung Benefits Act, the payment of the amounts required by an award of compensation or benefits shall not be stayed or in any way delayed beyond ten days after it becomes due pending final decision in any proceeding before the Board unless so ordered by the Board. No stay shall be issued unless irreparable injury would otherwise ensue to the employer, coal mine operator or insurance carrier. Any order of the Board permitting any stay shall contain a specific finding, based upon evidence submitted to the Board and identified by reference thereto, that irreparable injury would result to such employer, operator or insurance carrier, and specify the nature and extent of the injury.\n \n \n 2\n Amended Sept. 28, 1984 P.L. 98-426, Sec. 15, 98 Stat. 1649, to provide for five members\n \n \n ", "ocr": false, "opinion_id": 521912 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
5,423
null
1993-01-13
false
valentine-sugars-inc-v-donau-corp
null
Valentine Sugars, Inc. v. Donau Corp.
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\92/92-3462.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n Nos. 92-3276, 92-3462.\n\n VALENTINE SUGARS, INC., Plaintiff-Appellant,\n\n v.\n\n DONAU CORPORATION, et al., Defendants-Appellees.\n\n Jan. 15, 1993.\n\nAppeals from the United States District Court for the Eastern District of Louisiana.\n\nBefore REAVLEY, SMITH, and DeMOSS, Circuit Judges.\n\n JERRY E. SMITH, Circuit Judge:\n\n I.\n\n A.\n\n Donau Corporation is a marketing corporation owned by Krishan Sudan. In 1984, Sudan\n\napproached Gus Baldwin, the manager of Valentine Sugars, Inc., regarding a possible joint venture\n\nto produce spray-dried phenolic resins for use as adhesives in the manufacture of waferboard.1\n\nValentine already produced phenolic molding compounds. Sudan convinced Baldwin that a dryer\n\ncould be acquired and installed at the Valentine plant for under one million dollars. He projected that\n\nthe venture could earn handsome profits by the first quarter of 1985 with an additional $400,000 in\n\nworking capital. The companies formed the joint venture as Valdon, Inc.\n\n The parties executed a number of agreements on June 29, 1984, under which Sudan was to\n\nprovide his secret formula for liquid resin; Valentine then would produce the resin and sell it to\n\nValdon. Valentine was to purchase and install a spray dryer on its property, which Valdon was to\n\nlease and use to spray dry the liquid resin. Sudan was to provide technical assistance for spray drying\n\nand then market the powder though Donau.\n\n\n 1\n Waferboard replaces plywood in housing construction. It is made of large wood chips\nadhered with phenolic resins in powdered form. The resins begin as organic liquids; the spray\ndrying apparatus then transforms them to powder form. Manufacturers use the powder form to\nproduce the waferboard.\n\f The agreements provided for compensation for both parties. Valentine would receive cost\n\nplus three percent in making the resin, return of its investment in the spray dryer, monthly rent for the\n\nlease of its equipment and premises, and half of Valdon's profits. After Valentine had recouped its\n\ninvestment in the dryer, Donau was to receive royalties on the liquid resin sold to Valdon, royalties\n\nfrom Valdon on dry powder produced, commissions from Valdon on sales, and one-half the profits\n\nof Valdon.\n\n According to the lease agreement, Valentine was to own the spray dryer and receive a\n\nmonthly rental of $3,000, plus 1/96 of the investment cost, plus interest from Valdon for a period of\n\neight years. At the end of eight years, Valdon would have the option of purchase at fair market value\n\nor extension of the lease term. The parties amended the joint venture agreement to reduce Donau's\n\nroyalties until Valentine had recouped its investment.\n\n Valentine purchased a used spray dryer and had it installed at a total cost of over $3.5 million.\n\nValentine began manufacturing phenolic resins, and Valdon spray dried them. The resins turned out\n\nto be faulty, and Donau was unable to make any sales. According to Sudan, the resins did not work\n\nbecause Valentine refused to purchase additional equipment for use in the drying process.\n\n After the spray dryer lay idle for three years, Valentine entered a Toll Manufacturing\n\nAgreement with Georgia-Pacific Corp. whereby Valentine is paid to spray dry Georgia-Pacific's liquid\n\nphenolic resins. Between April 1989 and November 1990, Valentine spray dried over thirteen million\n\npounds of powdered resin. Valentine contends it still has not recouped its investment, so Donau is\n\nnot entitled to royalties. Apparently, Sudan was correct that the dryer needed the additional\n\nequipment, as Valentine added the necessary equipment to the dryer before producing powder for\n\nGeorgia-Pacific.\n\n B.\n\n Valentine filed a diversity action seeking an injunction and damages on January 6, 1986. A\n\nyear later, the district court stayed the proceedings pending arbitration. The arbitration hearings\n\nfinally began on June 24, 1991, before a panel of the American Arbitration Association's Commercial\n\nArbitration Tribunal, which issued its two-page award on September 16, 1991. The relevant portion\n\fof the award reads as follows:\n\n All agreements have been terminated as of January 3, 1986.\n\n Donau Corporation and Krishan Sudan (hereinafter referred to as CLAIMANT) are not\n entitled to any royalty payment for liquid or spray dried products produced by Valentine\n Sugars, Inc. (hereinafter referred to as RESPONDENT) or by Valdon prior to January 3,\n 1986.\n\n RESPONDENT fully owns spray drying equipment formerly owned by Valdon free of any\n ownership claims by CLAIMANT or Valdon.\n\n RESPONDENT shall pay to CLAIMANT the sum of SIX HUNDRED THOUSAND AND\n NO/100 ($600,000.00) DOLLARS.\n\n RESPONDENT shall pay to CLAIMANT $0.03/pound for all spray dried product produced\n after January 1, 1991 on the spray drying equipment formerly owned by Valdon.\n\n Donau and Sudan moved, in the district court, on October 2, 1991, to confirm the arbitrator's\n\naward and enter judgment. Valentine moved to vacate, modify, or amend the award. The district\n\ncourt vacated the award, directing the parties to resubmit the matter either to the original arbitration\n\npanel or to a new panel for rehearing. On February 24, 1992, after reconsidering its decision, the\n\ndistrict court confirmed the arbitration award and entered judgment.\n\n Valentine moved to alter or amend the judgment and filed a notice of appeal on March 23,\n\n1992, after that motion was denied. The district court denied Valentine's motion for reconsideration\n\non April 9, 1992. Donau and Sudan began proceedings to enforce the judgment, as Valentine had\n\nnot posted bond. On April 16, 1992, these proceedings were stayed, as Valentine apparently had filed\n\nfor bankruptcy. Valentine filed a second notice of appeal on May 8, 1992; the appeals were\n\ncombined.\n\n II.\n\n Valentine first argues that the arbitrators exceed their authority by deciding an issue not\n\nbefore them—the ownership of the spray dryer. Valentine claims that Donau did not properly raise\n\nthe issue of ownership in the notice of arbitration, as no specific language in that noti ce raises the\n\nissue.2 If the arbitrator exceeded his power, the district court may vacate the award. Forsythe Int'l,\n\n 2\n Certainly, the broad arbitration clause in the joint venture agreement makes the ownership of\nthe dryer a proper subject of arbitration. That clause calls for arbitration of any dispute \"relating\nto or arising out of\" the agreement. When parties include such a broad arbitration clause, they\n\fS.A. v. Gibbs Oil Co., 915 F.2d 1017, 1020 (5th Cir.1990). In determining whether the arbitrator\n\nexceeded his jurisdiction, we resolve all doubts in favor of arbitration. Moses H. Cone Memorial\n\nHosp. v. Mercury Constr., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983).\n\n The demand for arbitration asked the panel to arbitrate \"a dispute concerning a commercial\n\nmatter involving several contracts signed on the 29th day of June, 1984....\" We thi nk this broad\n\nlanguage gave the arbitrators the power to do whatever was necessary to resolve any disputed matter\n\narising out of the joint venture. Certainly, as Valentine argued in its brief, the ownership of the spray\n\ndryer should be determined with reference to these agreements. In addition, the notice of arbitration\n\nrequests the arbitrators to \"determine the amount due and payable to the Plaintiffs ...\" This broad\n\nlanguage again seems to request the arbitrators to determine what Valentine owes Donau under the\n\ncollection of agreements. Given the presumption of arbitration, we hold that the broad language in\n\nthe notice of arbitration sufficiently placed the ownership of the spray dryer before the arbitration\n\npanel.\n\n We sympathize with Valentine, as Donau wrote a broad notice of arbitration that seems to\n\ngive the arbitrators jurisdiction over anything under the sun relating to the joint venture agreement.\n\nThe parties agreed to arbitration, however, and must accept the lose procedural requirements along\n\nwith the benefits which arbitration provides. An arbitrator, in his discretion, may choose not to\n\naddress an issue without giving the opposing party better notice and an opportunity to respond.\n\nFederal law, however, does not impose any requirements as to how specific a notice of arbitration\n\nmust be. In the absence of a congressional mandate, we will not develop a code of pleading here.\n\n Valentine improperly relies upon Delta Queen Steamboat Co. v. District 2 Marine Eng'rs\n\nBeneficial Ass'n, 889 F.2d 599 (5th Cir.1989), cert. denied, --- U.S. ----, 111 S.Ct. 148, 112 L.Ed.2d\n\n114 (1990). There, we vacated an arbitration award reinstating an employee because the arbitrator\n\nexceeded the express limitations of his contractual mandate. In reinstating the employee, the\n\narbitrator took an action forbidden by the underlying collective bargaining agreement. Here,\n\n\n\nintend the clause to reach all aspects of the relationship. Neal v. Hardee's Food Sys., 918 F.2d\n34, 37-38 (5th Cir.1990).\n\fValentine can point to no contractual provision that removes the ownership of the spray dryer as an\n\nissue to be decided by an arbitrator.\n\n Our decision in Totem Marine Tug & Barge v. North Am. Towing, 607 F.2d 649 (5th\n\nCir.1979), presents a more similar factual scenario. There, we held that the arbitrator exceeded his\n\npower by awarding damages that the plaintiff did not list and admitted were not an issue in the case.\n\nWe distinguish Totem Marine as well. There, the plaintiff admitted to the arbitration panel that the\n\ncase did not present the issue and, in reliance upon that representation, the defendant failed to put on\n\nany evidence for that issue. Here, Donau submitted damage statements to the arbitrators, alleging\n\nit owned the spray dryer and never made any representations that the issue was not before the panel.\n\n III.\n\n Next, Valentine argues that we should vacate the award because it is based upon a material\n\nmistake of fact. Title 9 U.S.C. § 11(a) allows us to vacate an award \"[w]here there was an evident\n\nmaterial miscalculation of figures or an evident material mistake in the description of any person,\n\nthing, or property referred to in the award.\" The Sixth Circuit has held that \"where the record that\n\nwas before the arbitrator demonstrates an unambiguous and undisputed mistake of fact and the record\n\ndemonstrates strong reliance on that mistake by the arbitrator in making his award, it can fairly be\n\nsaid that the arbitrator \"exceeded [his] powers or so imperfectly executed them' that vacation may\n\nbe proper.\" National Post Office v. United States Postal Serv., 751 F.2d 834, 843 (6th Cir.1985).\n\n We interpret the term \"undisputed\" t o mean we should look to see whether there is any\n\nrational basis for disputing the truth of the fact. See Anderman/Smith Co. v. Tennessee Gas Pipeline\n\nCo., 918 F.2d 1215, 1218 (5th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2799, 115 L.Ed.2d\n\n972 (1991) (award must at least be rationally inferable from the agreement). In other words, just\n\nbecause Donau contends it owns the spray dryer does not make ownership disputed; Donau must\n\nhave some rational basis for its argument. Although Valentine has made a strong argument that no\n\nrational finder of fact could determine that Valdon once owned the spray dryer, we need not reach\n\nthis issue.\n\n Instead, our decision rests upon the statutory requirement that the mistake be \"material,\" or\n\fin the words of the Sixth Circuit, the record must \"demonstrate[ ] strong reliance on that mistake\"\n\nin making the award. Valentine cannot demonstrate with adequate certainty that the arbitrators\n\nstrongly relied upon the punitive fact that Valdon once owned the spray dryer in making its award.\n\n Valentine contends that the arbitrators relied upon the mistake of fact in awarding the lump\n\nsum of $600,000 and the three-cent royalty. Essentially, Valentine contends that the arbitrators\n\nliquidated the joint venture, awarding it the ownership of the machine and giving Donau monetary\n\ncompensation. Although Valentine may be entirely correct, it only provides one theory of how the\n\narbitrators reached their decision. Donau provides alternative explanations for the two awards.\n\n Donau contends the arbitrators may have awarded the lump sum as an award of past damages\n\nbased upon post-termination royalties due on the Georgia-Pacific contract. Donau argues the royalty\n\naward was a reasonable royalty for the use of Donau's technology as provided for after termination\n\nof the agreements between the parties. Arbitrators need not provide reasons for their award. E.g.,\n\nAntwine v. Prudential Bache Sec., 899 F.2d 410, 412 (5th Cir.1990). If the award is rationally\n\ninferable from the facts before the arbitrator, we must affirm the award. See Anderman/Smith.\n\n Applying Anderman/Smith to the circumstances before us, we conclude that we must affirm\n\nthe arbitrators' award if Donau can provide any rational explanation for the award inconsistent with\n\nValentine's theory that the award had to be based upon Valdon's former ownership of the spray dryer.\n\nFinding Donau's explanations rational, we must affirm the decision of the district court; we cannot\n\ndetermine with certainty that the arbitrators based the two awards in question upon Valdon's former\n\nownership of the spray dryer.\n\n IV.\n\n Valentine also argues the arbitrators had no jurisdiction to decide the case, because they did\n\nnot take oaths as required by Louisiana law. Further, Valentine charges the award is contrary to\n\npublic policy. We need not decide either of these issues, as Valentine waived them by not raising\n\nthem in the district court.\n\n Finally, in desperation, Valentine argues that the arbitrators' award is ambiguous. We\n\nconsider t his claim to be without merit, as the award is sufficiently pellucid when interpreted\n\frationally.\n\n The judgment is AFFIRMED.\n\f", "ocr": false, "opinion_id": 5423 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
466,349
Holden, Newman, Winter
1986-03-11
false
united-states-v-lawrence-salvatore-iorizzo
null
United States v. Lawrence Salvatore Iorizzo
UNITED STATES of America, Appellee, v. Lawrence Salvatore IORIZZO, Defendant-Appellant
Lawrence F. Ruggiero, New York City (Richard A. Greenberg, New York City, of counsel), for defendant-appellant., Mervyn Hamburg, Dept, of Justice, Washington, D.C. (Raymond J. Dearie, U.S. Atty. for the E.D.N.Y., of counsel), for appellee.
null
null
null
null
null
null
null
Argued Aug. 15, 1985.
null
null
64
Published
null
<parties id="b168-7"> UNITED STATES of America, Appellee, v. Lawrence Salvatore IORIZZO, Defendant-Appellant. </parties><br><docketnumber id="b168-9"> No. 85-1094. </docketnumber><br><court id="b168-10"> United States Court of Appeals, Second Circuit. </court><br><otherdate id="b168-11"> Argued Aug. 15, 1985. </otherdate><br><decisiondate id="b168-12"> Decided March 11, 1986. </decisiondate><br><attorneys id="b169-11"> <span citation-index="1" class="star-pagination" label="53"> *53 </span> Lawrence F. Ruggiero, New York City (Richard A. Greenberg, New York City, of counsel), for defendant-appellant. </attorneys><br><attorneys id="b169-12"> Mervyn Hamburg, Dept, of Justice, Washington, D.C. (Raymond J. Dearie, U.S. Atty. for the E.D.N.Y., of counsel), for appellee. </attorneys><br><judges id="b169-13"> Before NEWMAN and WINTER, Circuit Judges, and HOLDEN, District Judge. <a class="footnote" href="#fn*" id="fn*_ref"> * </a> </judges><div class="footnotes"><div class="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b169-14"> The Honorable James S. Holden, Judge, United States District Court for the District of Vermont, sitting by designation. </p> </div></div>
[ "786 F.2d 52" ]
[ { "author_str": "Winter", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/786/786.F2d.52.85-1094.html", "author_id": null, "opinion_text": "786 F.2d 52\n UNITED STATES of America, Appellee,v.Lawrence Salvatore IORIZZO, Defendant-Appellant.\n No. 85-1094.\n United States Court of Appeals,Second Circuit.\n Argued Aug. 15, 1985.Decided March 11, 1986.\n \n Lawrence F. Ruggiero, New York City (Richard A. Greenberg, New York City, of counsel), for defendant-appellant.\n Mervyn Hamburg, Dept. of Justice, Washington, D.C. (Raymond J. Dearie, U.S. Atty. for the E.D.N.Y., of counsel), for appellee.\n Before NEWMAN and WINTER, Circuit Judges, and HOLDEN, District Judge.*\n WINTER, Circuit Judge:\n \n \n 1\n Lawrence S. Iorizzo appeals from various convictions by two juries before Judge Altimari in the Eastern District of New York. Iorizzo was charged in a sixteen count indictment with mail and wire fraud, 18 U.S.C. Secs. 1341, 1343 (1982), as well as with the interstate transportation of stolen property, 18 U.S.C. Sec. 2314 (1982). These charges arose out of his activities as president and principal owner of Vantage Petroleum Corporation (\"Vantage\") and various affiliated companies he owned or controlled. There were three categories of counts. Counts 1-5 were dismissed before trial on the government's motion and no longer concern us. Counts 6-13, alleging mail fraud, concerned a scheme to defraud New York State out of gasoline excise and sales taxes from June, 1979 to August, 1981. Counts 14-16 alleged wire fraud and the interstate transportation of stolen property. They concerned a scheme in which the defendant allegedly defrauded Ashland Petroleum Company out of more than $500,000 of gasoline during the period January-February 1982 and caused some of that gasoline to be transported from New Jersey to New York.\n \n \n 2\n The trial of the mail fraud counts (6-13) was severed from that of the Ashland counts (14-16), the former being held in April, 1984, the latter in June of the same year. Defendant was represented by the same attorney in both trials. In the first trial, the jury returned guilty verdicts on all eight counts. The second trial resulted in one conviction and one acquittal on the wire fraud counts, and a conviction on the interstate transportation count. Iorizzo was sentenced to concurrent five-year terms of imprisonment and a five-year term of probation, and ordered to pay $19,000 in fines and approximately $1.7 million in restitution.\n \n \n 3\n Finding that Iorizzo did not have the assistance of a counsel free from conflicts of interest that affected the trial, we reverse the mail fraud convictions and remand. We reverse the wire fraud conviction and dismiss this count because of the lack of a nexus between the use of the wires and the fraudulent scheme. We find no error in the conviction for interstate transportation of stolen property but remand for further proceedings to determine the applicability of United States v. Cancilla, 725 F.2d 867 (2d Cir.1984).\n \n I. THE MAIL FRAUD CONVICTIONS\n \n 4\n The scheme to evade state gasoline taxes involved use of the mails to file allegedly fraudulent New York State excise and sales tax returns. As a motor fuel distributor licensed by New York State, Vantage was required to prepare and file such returns. The amount of tax owed was determined by subtracting Vantage's closing inventory for the relevant period from its opening inventory, with certain adjustments of no relevance to this appeal. The statutory rate was then applied to this amount.\n \n \n 5\n The government sought to prove that Iorizzo caused Vantage's tax liability to be minimized by periodically inflating the closing inventory figures and thus reducing reported sales. The government's key witness in this regard was James Tietz, a supervisor in Vantage's accounting department who was principally responsible for preparing tax returns for Vantage and various affiliated companies. He testified that he was instructed by Iorizzo to manipulate sales and inventory figures so as to match the companies' tax liability with the amount of discretionary cash the firms had available for the payment of taxes. According to his testimony, Tietz had misgivings about his conduct, despite Iorizzo's assurances that the unpaid taxes would be made up later, and at times refused to sign the false returns. He also testified that he and an associate embezzled funds from Vantage by cashing paychecks issued to non-existent employees but that Iorizzo agreed not to pursue the matter so long as Tietz resumed signing the false state tax forms.\n \n \n 6\n Tietz's relationship to Iorizzo's defense counsel gives rise to a major issue on this appeal. In 1981, New York authorities were investigating Vantage's and the affiliated corporations' compliance with the gasoline excise and sales tax. Tietz and two other employees of these corporations were subpoenaed and testified under oath at a hearing before the State Tax Commission. At that hearing, they were represented by the same attorney who served as Iorizzo's defense counsel at the trials that are the subject of the present appeal. Events at the mail fraud trial suggest that Iorizzo paid the lawyer to represent these witnesses. Tietz's testimony at the prior hearing pertained to his role in preparing and filing certain sales and payroll tax returns for Vantage and certain of the affiliated companies. Although the testimony before the Tax Commission did not cover exactly the same period of time as the indictment, there was overlap. Tietz's testimony on that occasion in no way either admitted the falsity of the returns or implicated Iorizzo in a scheme to file false returns.\n \n \n 7\n The potential conflict of interest arising from defense counsel's role as Iorizzo's advocate at the mail fraud trial and his earlier representation of the government's key witness in a related state proceeding was evident to the prosecution prior to trial. At a pretrial proceeding, the government, through a New York state prosecutor specially deputized to try this case, raised the issue of whether defense counsel was disqualified. He told the district court:\n \n \n 8\n Any doubt that may have existed before as to a conflict or any shadow has been removed by [defense counsel]. He chose to represent Mr. Tietz at that time, he chooses to represent Mr. Iorizzo now. If he gathered any confidential information ... which he intends to use at trial, I think there's a conflict. I think the government has certain rights when there is a conflict among attorneys and I think this is now highlighted and respectfully I think the Court is forced to rule now whether [defense counsel] can continue representing this client if this matter is critical. Mr. Tietz will be a witness subject to cross-examination.\n \n \n 9\n The court instructed the government that in the event it chose to pursue the disqualification issue, it must do so in writing. The prosecutors failed to make a written objection, however.\n \n \n 10\n During his opening statement at trial, defense counsel promised to show the jury that the government's case was \"based almost entirely on the testimony of a thief, a liar and a forgerer--one James Tietz.\" During Tietz's extended cross-examination, defense counsel asked him whether he remembered testifying before the State Tax Commission. Counsel for the government immediately asked for a sidebar conference at which they strenuously objected to any cross-examination regarding Tietz's earlier testimony. The grounds stated by the deputized prosecutor were that any cross-examination of the witness \"about testimony ... where he represented him ... is completely improper.\" The regular Assistant United States Attorney, a prosecutor with considerable experience, told the district judge, \"[T]his is the clearest conflict I have ever seen.\"\n \n \n 11\n Defense counsel stated that his purpose was to induce Tietz to confirm the accuracy of his prior statements, which neither admitted the falsity of the tax returns nor implicated Iorizzo. Defense counsel thus stated at one point:\n \n \n 12\n I am going to ask this witness some questions. If he testifies truthfully, I probably will not have to refer to this.\n \n \n 13\n If he lies, I am going to confront him with his prior sworn testimony which this is a transcript.\n \n \n 14\n If he says he does not remember, I will show him the appropriate part of the transcript and ask him if it refreshes his recollection. I will not go beyond the transcript. This is merely to make sure that his testimony is consistent which is perfectly proper cross examination.\n \n \n 15\n The district judge agreed that defense counsel indeed had a conflict but nevertheless stated that cross-examination might proceed. He stated:\n \n \n 16\n [Y]our professional integrity is your responsibility not mine.\n \n \n 17\n I'm going to allow you to cross-examine but not with any blessings on the part of this Court. I do not condone it. I make no judgments about it.\n \n \n 18\n And if indeed an appropriate committee feels that what you are doing here is wrong, then do not indicate that this Court condoned the cross-examination.\n \n \n 19\n The judge also noted that, because defense counsel had represented Tietz when the latter made the statements in question, the prosecution might well call defense counsel as a witness should Tietz's credibility be impaired by the cross-examination. The judge pointed out that such circumstances would implicate the canons of ethics.\n \n \n 20\n After further colloquy, the judge altered his position slightly:\n \n \n 21\n When you go to the podium, you are to take this [transcript] and put it down on the podium and never again to pick it up. You may ask him questions very well prepared as a result of reading this. You will not confront the witness with this.\n \n \n 22\n [DEFENSE COUNSEL]: Fine.\n \n \n 23\n THE COURT: If indeed there is a variance, then at a sidebar in the absence of the jury some way we will take up this question of conflict.\n \n \n 24\n On the face of it it appears that you are in conflict at this point. But it is a late stage at this point, and we are in the middle of the trial.\n \n \n 25\n I will not disrupt the trial except we may get past it without making a judgment on it.\n \n \n 26\n [DEPUTIZED PROSECUTOR]: I think the witness, rather than be ambushed, should be allowed to read this transcript.\n \n \n 27\n * * *\n \n \n 28\n * * *\n \n \n 29\n THE COURT: That makes a lot of sense to me.\n \n \n 30\n The issue was then put aside until the next day in order to give Tietz an opportunity to read the transcript of his testimony before the State Tax Commission. That day, the following occurred:\n \n \n 31\n THE COURT: * * * *\n \n \n 32\n Before the Jury comes in ... Is there any problem in regard to the alleged conflict of interests? That is, the conflict as to the counts for the present Defendant and the witness, Mr. Tietz, on the stand now?\n \n \n 33\n [DEPUTIZED PROSECUTOR]: I would just inquire from Counsel if he intends to pursue any further questioning regarding that.\n \n \n 34\n [DEFENSE COUNSEL]: I do not.\n \n \n 35\n THE COURT: Thank you.\n \n \n 36\n [ASSISTANT UNITED STATES ATTORNEY]: I would also ask that the Defendant through Counsel be informed by the Court that most of the discussions were at side bar and waived--or at indicated to the Court that he is satisfied with [defense counsel's] representation even if there is a conflict because we don't know what [defense counsel] was privy to.\n \n \n 37\n * * *\n \n \n 38\n * * *\n \n \n 39\n The question is, I don't want a question raised should there be an appeal, that there was ineffectiveness of Counsel because [defense counsel] was representing him and also--\n \n \n 40\n THE COURT: Counsel, two weeks ago the Second Circuit spoke on this point, this very point. And that is a point well taken.\n \n \n 41\n So, in the presence of this Court and on the record you must explain to your client [w]hat he already knows, which is, that Mr. Tietz was at one time represented by you, that you now decline to question him concerning certain testimony offered by Mr. Tietz under oath, and that you made a judgment, a professional judgment, that there is no need or reason for your confronting this witness with or without a transcript.\n \n \n 42\n [DEFENSE COUNSEL]: Mr. Iorizzo, in March of 1981, was I retained by the Vantage--or was I representing the Vantage Petroleum Corporation in connection with an investigation into Salvan Management, P.C.I., and Martin Carey concerning certain alleged sales tax frauds?\n \n \n 43\n [ASSISTANT UNITED STATES ATTORNEY]: Your honor, I have no wish to ask that the defendant testify under oath. I just wanted the defendant to acknowledge to the Court that he understands what is going on.\n \n \n 44\n THE COURT: No. I think it can never be construed to constitute testimony. It is for a simple single purpose--\n \n \n 45\n [ASSISTANT UNITED STATES ATTORNEY]: Fine.\n \n \n 46\n THE COURT: (continuing) of stating for the record that he understands what happened and he is satisfied with [defense counsel's] representation.\n \n \n 47\n * * *\n \n \n 48\n * * *\n \n \n 49\n [DEFENSE COUNSEL]: And your answer, sir?\n \n \n 50\n THE DEFENDANT: Yes.\n \n \n 51\n [DEFENSE COUNSEL]: All right. Were you at that time President of Vantage Corporation?\n \n \n 52\n [THE DEFENDANT]: Yes.\n \n \n 53\n [DEFENSE COUNSEL]: All right. Did you request me to represent not only the corporation but any of the corporate employees who were called to testify in that matter?\n \n \n 54\n THE DEFENDANT: Yes.\n \n \n 55\n [DEFENSE COUNSEL]: And was one of the employees, one of the Vantage employees who was called to testify before the New York State Tax Department, one James Tietz?\n \n \n 56\n THE DEFENDANT: Yes.\n \n \n 57\n [DEFENSE COUNSEL]: Did you ask me to represent Mr. Tietz in that proceeding?\n \n \n 58\n THE DEFENDANT: Yes.\n \n \n 59\n [DEFENSE COUNSEL]: All right.\n \n \n 60\n Now, we have a transcript of Mr. Tietz' testimony at that proceeding. And I have agreed with the Court that I will not ask any questions of Mr. Tietz concerning evidence that he gave in that proceeding. Do you understand that?\n \n \n 61\n THE DEFENDANT: I understand that.\n \n \n 62\n [DEFENSE COUNSEL]: All right. Are you willing for me to forego that area of examination, of cross examination?\n \n \n 63\n THE DEFENDANT: Yes.\n \n \n 64\n Iorizzo, represented by new counsel on this appeal, argues that he was deprived of the effective assistance of counsel by the events described above. The government responds with arguments that are entirely at odds with the position it took in the district court. It contends that: (i) defense counsel was not burdened by a conflict of interest but had \"merely made an appearance on behalf of Tietz at an unrelated state hearing years before....\"; (ii) the proposed cross-examination was never connected to \"any relevant area of inquiry that [defense counsel] had elected to forego as a result of his decision not to ask about the State Tax Commission hearing\"; and (iii) Iorizzo has waived the issue. We agree with appellant and reject the government's contentions.\n \n \n 65\n In attempting to represent Iorizzo in this matter, trial counsel was confronted with an unavoidable conflict of interest. Tietz was the key government witness against Iorizzo. His previous testimony under oath was clearly relevant to the testimony he gave at trial about Iorizzo's instructions with regard to signing false sales tax returns. Because Tietz's prior statements had been made at a time when defense counsel was representing him, the prior testimony could not be used to attack Tietz's credibility without putting defense counsel's role before the State Tax Commission in issue. Any such attempt would open the way for Tietz to be asked on redirect about his legal representation at the State Tax Commission hearing and about any advice he had received from defense counsel at that time. Moreover, the government might well have called trial counsel as a witness not only to interrogate him about advice to Tietz but also to bring out the fact that Iorizzo apparently was paying him to represent Tietz before the State Tax Commission. Even if the government did not call defense counsel and even if he had rendered no advice to Tietz with regard to his prior testimony, he should then have been available to testify on behalf of Iorizzo to dispel any impression left upon the jury that he had been responsible for Tietz's testimony. Finally, whether or not he actually testified, his firsthand involvement in Tietz's testimony would cause any argument to the jury about that testimony to be viewed as a statement of a witness as well as of an advocate. Our prior decisions indicate that such circumstances constitute a disqualifying conflict under Disciplinary Rule 5-102(A). United States v. McKeon, 738 F.2d 26, 34-35 (2d Cir.1984).\n \n \n 66\n Moreover, the existence of this conflict of interest led defense counsel to forego a most relevant line of inquiry.1 As the government's key witness, Tietz' credibility went directly to the guilt or innocence of the defendant. A key witness' prior statements under oath that cast doubt upon the accuracy of his trial testimony are an obvious subject of potential cross-examination. Had this cross-examination been foreclosed on grounds of relevance by an evidentiary ruling of the trial court, that surely would have been reversible error.\n \n \n 67\n We perceive no reason to alter this result because trial counsel decided voluntarily to forgo what he believed to be a relevant line of inquiry after being vigorously challenged by the government and advised by the district court of its skepticism as to the ethical propriety of the cross-examination. The district court might well have permitted a full exploration of Tietz's prior testimony had trial counsel persisted. However, the spectre of a disciplinary hearing was explicitly raised, and defense counsel was on warning that further inquiry would be at risk to his professional reputation and employment.\n \n \n 68\n The decision to forgo inquiry into Tietz's prior testimony was not the result of a tactical judgment by a conflict-free lawyer that such evidence would not be helpful to Iorizzo. Rather, the government's objections and the trial court's admonitions to defense counsel related exclusively to the ethical impropriety of the cross-examination by this particular attorney.2 The decision to forgo inquiry was thus made solely to protect the interests of defense counsel.\n \n \n 69\n Supreme Court decisions require us to reverse the convictions in such circumstances.3 Defendants who make ineffective assistance claims based solely on errors or omissions in pretrial investigations or trial strategy must, to succeed, meet a more stringent test than those who base such a claim on an attorney's conflict of interest. In the former case, the defendant must show: \"First ... that counsel's performance was deficient ... [s]econd, ... that the deficient performance prejudiced the defense.\" Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984). However, a defendant claiming that the assistance of counsel was ineffective due to the counsel's conflict of interest need not establish prejudice. Rather, prejudice is presumed when counsel is\n \n \n 70\n burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel 'actively represented conflicting interests' and 'that an actual conflict of interest adversely affected his lawyer's performance.' Cuyler v. Sullivan, supra, 446 U.S., at 350, 348, 90 S. Ct., at 1719, 1718 (footnote omitted).\n \n \n 71\n Strickland v. Washington, supra, 104 S.Ct. at 2067.\n \n \n 72\n Thus, once the defendant establishes that there was an actual conflict, he need not prove prejudice, but simply that a \"lapse in representation,\" Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S. Ct. 1708, 1718-19, 64 L. Ed. 2d 333 (1980), resulted from the conflict.\n \n \n 73\n Such a lapse occurred in the present case when trial counsel abandoned his cross-examination of the government's key witness as to prior testimony. This examination never got off the ground because of the objections by the government based solely upon defense counsel's conflict of interest. At the time, its abandonment was viewed by all concerned as necessary to allow defense counsel to avoid ethically improper conduct. Iorizzo, however, was entitled to a counsel unburdened by the ethical constraints resulting from prior representation of the government's key witness.\n \n \n 74\n We turn now to the government's contention that Iorizzo validly waived his right to a counsel so unburdened and to a full cross-examination of Tietz. In United States v. Curcio, 680 F.2d 881 (2d Cir.1982) (\"Curcio I\"), we established procedures to be followed in situations in which a criminal defendant states that he desires to waive his right to representation by an attorney without a conflict of interest. Although Curcio I differs from the present case in that multiple representation was in issue, we regard those procedures as applicable here. In that case we directed that the trial court should: (i) advise the defendant of the dangers arising from the particular conflict; (ii) determine through questions that are likely to be answered in narrative form whether the defendant understands those risks and freely chooses to run them; and (iii) give the defendant time to digest and contemplate the risks after encouraging him or her to seek advice from independent counsel. Id. at 888-90.\n \n \n 75\n None of these steps was taken in the present case. The inquiry was conducted not by the court, but by the very attorney whose capacity to act in the defendant's interests was under challenge. The risks of forgoing relevant cross-examination of Tietz were not explained to the defendant, and the questions that were asked called only for a \"yes\" or \"no\" answer. Finally, Iorizzo had to decide on the spot, without time to consider the matter or to seek the advice of independent counsel, a possibility that was never mentioned to him. Iorizzo, therefore, did not validly waive his rights.\n \n \n 76\n We add a final note. The reversal here is the direct result of the prosecution's using defense counsel's conflict of interest as a means of affecting the evidence going before the jury instead of moving for his disqualification before the trial. The prosecutors here were aware of defense counsel's conflict of interest at an early stage and were invited by the district judge to make a disqualification motion in writing. We trust that this decision will ensure that a pretrial disposition of such issues will occur in the future.\n \n II. THE ASHLAND CONVICTIONS\n \n 77\n Iorizzo also challenges his convictions on wire fraud and interstate transportation of stolen property. These counts were tried separately, and our disposition of the mail fraud counts does not affect these convictions.\n \n \n 78\n Ashland was a large oil company with which Vantage had an ongoing relationship. The record reveals that from time to time throughout the course of this relationship, Vantage exceeded its credit limit with Ashland, although it generally paid its bills when due. By December, 1981, however, Vantage had far exceeded its $250,000 credit limit with Ashland and was not paying its bills in a timely fashion. On January 8, 1982, Randall Eli, Ashland's New York representative, notified Stephen Magnani, an assistant vice-president of Vantage, that Vantage's account was being suspended pending resolution of the credit problem. Vantage's access to Ashland oil was then terminated at all Ashland facilities except for one in Linden, New Jersey. Because the Linden facility was controlled by a computerized key-entry system that made it difficult to reinstate suspended customers quickly, Eli merely elicited a \"gentlemen's agreement\" from Magnani that Vantage would take no fuel from Linden without Ashland's express approval.\n \n \n 79\n Despite the gentlemen's agreement, four or five loads of gasoline worth about $30,000 were taken from the Linden facility between January 8 and January 14. On January 14, Iorizzo, who knew of the \"gentlemen's agreement\", instructed Magnani to tell Eli that these withdrawals were accidental and that the gasoline would be transferred to another customer authorized to make credit purchases at Linden. Magnani did so in a telephone call that formed a basis of the wire fraud charged in Count 14. The transfer to the other customer was never made, and, in fact, an additional $500,000 worth of fuel was taken from the Linden facility between January 27 and February 3 in breach of the gentlemen's agreement. Nevertheless, the jury acquitted on this count.1. The Wire Fraud Conviction\n \n \n 80\n In mid-January, an Ashland credit representative contacted Vantage about certain checks mailed by Vantage but not received by Ashland. Allen Fisher, Vantage's chief financial officer, agreed to stop payment on these checks and issue replacement checks. The amount of these checks was $481,499.29. On February 3, John Murphy, an Ashland official, sent a Western Union mailgram to Iorizzo, informing him that Ashland had received the stopped checks but not the replacements. He requested that Iorizzo cause Vantage to remit the amount by wire. The next day, Iorizzo sent the mailgram to Murphy that formed the basis of his wire fraud conviction. That mailgram stated:\n \n \n 81\n This is in reply to your mailgram of 2-3-82. We wish to advise you that we have not yet completed full analysis of the status of our account with you because of the complexity of invoices payments on account and dispersed checks as explained to you earlier. We expect to have this fully resolved in a few days but no later than February 15 at which time we shall contact you.\n \n \n 82\n However, the fraudulent scheme alleged in Count 15 is the unauthorized drawing of the additional $500,000 of fuel from the Linden terminal, whereas Iorizzo's mailgram was a response to Murphy's inquiry concerning the stopped checks. The last Vantage withdrawal from the Linden terminal occurred on February 3; thus, the mailgram in question was sent after the last withdrawal.\n \n \n 83\n The government argues that the purpose of the communication was to lull Ashland into a false sense of security and to induce it to refrain from taking steps to recover the fuel. See United States v. Maze, 414 U.S. 395, 403, 94 S. Ct. 645, 650, 38 L. Ed. 2d 603 (1974); United States v. Sampson, 371 U.S. 75, 83 S. Ct. 173, 9 L. Ed. 2d 136 (1962); United States v. Jones, 712 F.2d 1316, 1320-21 (9th Cir.1983), cert. denied, 464 U.S. 986, 104 S. Ct. 434, 78 L. Ed. 2d 366 (1983); United States v. Angelilli, 660 F.2d 23, 36-37 (2d Cir.1981), cert. denied, 455 U.S. 910, 102 S. Ct. 1258, 71 L. Ed. 2d 449 (1982). However, we fail to see how this equivocating response to an inquiry about a series of unpaid checks could have been found beyond a reasonable doubt to have been intended to induce a sense of security about the wholly separate incident of the unauthorized withdrawal of $500,000 worth of fuel. At best, the mailgram was designed to induce Ashland to forgo action with regard to the checks in view of a seeming confusion over multiple sets of outstanding checks. It hardly seems designed to soothe nerves over the unmentioned and wholly unexplained withdrawals of great quantities of fuel from the Linden facility. Finally, the government's claim that Ashland was able on February 4 to identify and recover the fuel taken is wholly speculative. The mailgram thus was not sent \"for the purpose of executing\" the fraudulent scheme charged in the indictment. United States v. DeFiore, 720 F.2d 757, 763 (2d Cir.1983), cert. denied, 466 U.S. 906, 104 S. Ct. 1684, 80 L. Ed. 2d 158 (1984).\n \n \n 84\n The government contends, in the alternative, that the mailgram was within the parameters of the January 27-February 3 scheme because of its close temporal proximity, or within the parameters of a larger scheme that began on or about November 1, when Vantage drew the gas for which the stopped checks were issued. Neither argument is persuasive. Under the temporal proximity theory, any mailings or wires initiated in the time period surrounding a fraudulent scheme might be deemed predicate acts for purposes of mail or wire fraud. That does not square with United States v. Maze, 414 U.S. 395, 94 S. Ct. 645, 38 L. Ed. 2d 603 (1974). That case involved the use of stolen credit cards for food and lodging, but the Court held that the mailing of credit slips from the stolen cards by motels for payment was an invalid basis for mail fraud. Temporal proximity is thus not enough.\n \n \n 85\n The larger scheme theory is also unpersuasive because no such scheme was alleged in the indictment. Although Paragraph 1 of the Indictment sets November 1, 1981 as the starting point of the scheme, Paragraph 2 states that the amount involved was $532,000, the sum of the January 7-14 and January 27-February 3 withdrawals from Linden. The amounts owed under the stopped checks were, therefore, not included within the fraudulent scheme charged in the indictment. Accordingly, we reverse the conviction for insufficient evidence and dismiss Count 15.\n \n 2. The Interstate Transportation Conviction\n \n 86\n The interstate transportation count also involved the unauthorized withdrawal and interstate transportation of fuel from the Linden facility.\n \n \n 87\n Iorizzo contends that Vantage was owed substantial sums of money by Ashland as a result of past overcharging, and, therefore, that the taking of the gas from Linden was not criminal. We note first that the jury was by no means bound to find that this version of the facts was true. Moreover, we need not pass judgment on the question of whether Vantage's conduct amounted to theft, because the legislation in question also prohibits the interstate transportation of goods taken by fraud. 18 U.S.C. Sec. 2314. The jury could have found that directing the withdrawals from the Linden facility knowing that Ashland had not terminated Vantage's access in reliance upon the \"gentlemen's agreement\" was such a fraud, whether or not Iorizzo believed in good faith that Ashland owed Vantage money. Viewing the evidence in the light most favorable to the government, there was sufficient evidence for the jury to have found that Iorizzo intentionally caused the interstate transportation of stolen property.4\n \n \n 88\n Prior to oral argument, appellant's counsel moved for a remand to the district court for additional fact-finding. The grounds for the motion were that certain documents allegedly reveal trial counsel's involvement in the preparation of the false tax returns. We believe that a remand to the district court of the conviction on Count 16 is appropriate in these circumstances. Upon remand, the court can take evidence with regard to the applicability of United States v. Cancilla, 725 F.2d 867 (2d Cir.1984). Since the other convictions have been reversed and remanded for a new trial or reversed and dismissed, only Count 16 is involved in this remand. This panel, if practicable, will hear any appeal after remand.\n \n III. CONCLUSION\n \n 89\n The mail fraud convictions are reversed and remanded for a new trial. The wire fraud conviction is reversed and dismissed. The interstate transportation count is remanded for proceedings consistent with this opinion.\n \n \n \n *\n The Honorable James S. Holden, Judge, United States District Court for the District of Vermont, sitting by designation\n \n \n 1\n Two other employees of Vantage and the affiliated corporations testified at the State Tax Commission hearing and were also represented by Iorizzo's defense counsel. They were witnesses at the mail fraud trial and testified after Tietz. They too were not cross-examined with regard to their prior testimony. The present record does not reveal whether there was a basis for cross-examination with regard to that testimony\n \n \n 2\n The only statement even hinting that other reasons might have been behind the decision not to cross-examine occurred during the colloquy relating to Iorizzo's waiver of his rights in that regard. At that point, the district judge told defense counsel to explain to Iorizzo that he, defense counsel, had made \"a professional judgment that there is no need or reason for your confronting this witness with or without a transcript.\" Even if such an explanation had been given, the record would not support the conclusion that such a judgment had been made. However, the explanation was not given\n \n \n 3\n We do not reach, therefore, Iorizzo's claim on appeal that defense counsel's trial strategy and overall performance amounted to ineffective assistance of counsel\n \n \n 4\n We reject defendant's contention that the prosecutor's mention of \"uncontradicted\" or \"unrefuted\" evidence amounted to improper commentary by the prosecutor on defendant's failure to testify. Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965). Under the law of this circuit, such statements do not violate the Griffin \"no-comment\" rule. See United States v. Damsky, 740 F.2d 134, 140-41, (2d Cir.), cert. denied, --- U.S. ----, 105 S. Ct. 298, 83 L. Ed. 2d 233 (1984); United States v. Rodriguez, 556 F.2d 638, 641-42 (2d Cir.1977), cert. denied, 434 U.S. 1062, 98 S. Ct. 1233, 55 L. Ed. 2d 762 (1978)\n \n \n ", "ocr": false, "opinion_id": 466349 } ]
Second Circuit
Court of Appeals for the Second Circuit
F
USA, Federal
2,651,309
Colloton, Kelly, Riley
2014-01-28
false
argus-leader-media-v-united-states-department-of-agriculture
USDA
Argus Leader Media v. United States Department of Agriculture
ARGUS LEADER MEDIA, Doing Business as Argus Leader, Plaintiff-Appellant v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant-Appellee
Jon E. Arneson, argued, Sioux Falls, SD, for Plaintiff-Appellant., Stephanie Carlson Bengford, AUSA, argued, Sioux Falls, SD, for Defendant-Ap-pellee.
null
null
null
null
null
null
null
Submitted: Oct. 23, 2013.
null
null
0
Published
null
<parties id="b1218-6"> ARGUS LEADER MEDIA, doing business as Argus Leader, Plaintiff-Appellant v. UNITED STATES DEPARTMENT OF AGRICULTURE, Defendant-Appellee. </parties><br><docketnumber id="b1218-9"> No. 12-3765. </docketnumber><br><court id="b1218-10"> United States Court of Appeals, Eighth Circuit. </court><br><otherdate id="b1218-11"> Submitted: Oct. 23, 2013. </otherdate><br><decisiondate id="b1218-12"> Filed: Jan. 28, 2014. </decisiondate><br><attorneys id="b1219-11"> <span citation-index="1" class="star-pagination" label="1173"> *1173 </span> Jon E. Arneson, argued, Sioux Falls, SD, for Plaintiff-Appellant. </attorneys><br><attorneys id="b1219-12"> Stephanie Carlson Bengford, AUSA, argued, Sioux Falls, SD, for Defendant-Ap-pellee. </attorneys><br><judges id="b1219-13"> Before RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges. </judges>
[ "740 F.3d 1172" ]
[ { "author_str": "Riley", "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://media.ca8.uscourts.gov/opndir/14/01/123765P.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 12-3765\n ___________________________\n\n Argus Leader Media, doing business as Argus Leader\n\n lllllllllllllllllllll Plaintiff - Appellant\n\n v.\n\n United States Department of Agriculture\n\n lllllllllllllllllllll Defendant - Appellee\n ____________\n\n Appeal from United States District Court\n for the District of South Dakota - Sioux Falls\n ____________\n\n Submitted: October 23, 2013\n Filed: January 28, 2014\n ____________\n\nBefore RILEY, Chief Judge, COLLOTON and KELLY, Circuit Judges.\n ____________\n\nRILEY, Chief Judge.\n\n Formerly known as the Food Stamp Program, the Supplemental Nutrition\nAssistance Program (SNAP or program) is one of America’s largest and fastest-\ngrowing welfare arrangements: between 2007 and 2011, spending “more than\n\fdoubled . . . from about $30 billion to $72 billion.”1 Amid increasing public scrutiny\nof this burgeoning program, a Sioux Falls, South Dakota, newspaper called the Argus\nLeader (Argus) wondered how much money individual retailers received from\ntaxpayers each year through the program. Invoking the federal law meant to bring\ndisclosure sunlight to the government bureaucracy, Argus requested this spending\ninformation from the U.S. Department of Agriculture (department or USDA) under\nthe Freedom of Information Act (FOIA), 5 U.S.C. § 552. Cf. Louis D. Brandeis,\nOther People’s Money 92 (1914) (“Sunlight is said to be the best of disinfectants.”).\nWith little explanation, the department refused disclosure.\n\n After an internal administrative appeal proved fruitless, Argus brought a FOIA\nsuit in the District of South Dakota. The department moved for summary judgment,\ncontending the information was exempt from disclosure under 5 U.S.C.\n§ 552(b)(3)—known as FOIA Exemption 3—and 7 U.S.C. § 2018(c). Looking to\nlegislative history and accepting the department’s statutory interpretation, the district\ncourt found the spending information exempt from disclosure and granted the\ndepartment’s motion. Argus appeals. Concluding the statutory text plainly precludes\nthe department from shielding the spending information under Exemption 3, we\nreverse.\n\nI. BACKGROUND\n The Food Stamp Act of 1964, Pub. L. No. 88–525, 78 Stat. 703, launched the\nprogram with a $75 million appropriation in its first year, rising to $200 million in its\nthird. See id. § 16(a), 78 Stat. at 709. In fiscal year 2012, the program’s total cost\nexceeded $78 billion, with more than 46 million people—over fifteen percent of the\n\n\n\n\n 1\n Congr. Budget Office, The Supplemental Nutrition Assistance Program 5\n(2012), available at http://www.cbo.gov/sites/default/files/ cbofiles/attachments/04-\n19-SNAP.pdf.\n\n -2-\n\fU.S. population—receiving benefits.2 Most benefits go to needy families: 76 percent\nof SNAP households include “a child, an elderly person, or a disabled person” and\n“these households received 83 percent of all benefits.”3 An estimated $858 million\nper year is “trafficked,” meaning “SNAP recipients sell their benefits for cash at a\ndiscount to food retailers,” and approximately ten percent of participating retailers\nengage in trafficking.4\n\n A. Administrative Proceedings\n On February 1, 2011, Argus sent a letter to the department requesting “yearly\nredemption amounts, or EBT sales figures, for each store” participating in the\nprogram between fiscal years 2005 and 2010. Beneficiaries receive an electronic\nbenefit transfer (EBT) card, which functions like a debit card. To use the card at a\nparticipating retailer, beneficiaries swipe their EBT card and enter a four-digit\npersonal identification number at checkout. As with any other debit card transaction,\na third-party processor deducts the transaction amount from the beneficiary’s account\nand credits it to the retailer’s account. Such third-party processors “handle and track\n[program] benefit accounts,” then send transaction data to the department. Although\nthe days when retailers had to redeem physical food stamps have long passed, the\ndepartment still refers to this electronic process as a “redemption.” After receiving\n\n 2\n See Food & Nutrition Service (FNS), SNAP Monthly Data (Nov. 8, 2013),\nhttp://www.fns.usda.gov/pd/34SNAPmonthly.htm; FNS, SNAP Annual Summary\n(Nov. 8, 2013), http://www.fns.usda.gov/pd/SNAPsummary.htm; see also Phil Izzo,\nFood-Stamp Use Rises; Some 15% Get Benefits, Wall St. J., Aug. 9, 2013,\nhttp://blogs.wsj.com/economics/2013/08/09/food-stamp-use-rises-some-15- of-u-s-\ngets-benefits.\n 3\n FNS, USDA, Characteristics of SNAP Households: Fiscal Year 2011, at xv\n(2 012), available at http://www.fns.usda.g ov /sites /d efau lt/files /\n2011Characteristics.pdf.\n 4\n USDA, The Extent of Trafficking in the SNAP: 2009-2011, at ii (2013),\navailable at http://www.fns.usda.gov/sites/default/files/Trafficking2009.pdf.\n\n -3-\n\ftransaction data from the third-party processors, the department loads each retailer’s\naggregated data into a government database.\n\n The department appears to concede that it could use this database to supply the\ninformation requested by Argus. The department simply refuses to do so. In an\nundated letter received February 17, 2011, the department revealed the names and\naddresses of all participating retailers, but withheld “all other information . . . under\n5 U.S.C. [§] 552(b)(3) and (b)(4).” In a letter dated February 25, 2011, Argus\nappealed this withholding. The department denied the appeal in another undated\nletter.\n\n B. Article III Proceedings\n On August 26, 2011, Argus filed a complaint under 5 U.S.C. § 552(a)(4)(B) in\nfederal court seeking to compel the department to provide the withheld information.\nThe department moved for summary judgment, invoking Exemption 3, 5 U.S.C.\n§ 552(b)(3).\n\n On September 27, 2012, the district court granted the department’s motion.\nFirst, the district court decided 7 U.S.C. § 2018 qualified as a withholding statute\nunder Exemption 3. Second, the district court found the retailer spending information\nwas exempt from disclosure because it was “the type of information that can be\nobtained under the authority of § 2018”—though, in practice, it is not obtained from\nthe individual retailers. (Emphasis added). Consulting legislative history, the district\ncourt thought a 1994 amendment to § 2018 “demonstrate[d] that all types of\ninformation that relate to tax, income, or redemption data that is [sic] correlated with\nparticipation in [the program] is to be withheld in all instances except internal\nadministrative purposes or for law enforcement’s use.” The district court determined\nthe department was entitled to withhold the data. Argus appeals, invoking our\njurisdiction under 28 U.S.C. § 1291.\n\n\n\n -4-\n\fII. DISCUSSION\n We “perform[] a de novo review of the grant of summary judgment in a FOIA\ncase.” Mo. ex rel. Garstang v. U.S. Dep’t of Interior, 297 F.3d 745, 749 (8th Cir.\n2002). A government agency is not entitled to summary judgment in a FOIA case\nunless “the agency proves that it has fully discharged its obligations under FOIA,\nafter the underlying facts and the inferences to be drawn from them are construed in\nthe light most favorable to the FOIA requester.” Miller v. U.S. Dep’t of State, 779\nF.2d 1378, 1382 (8th Cir. 1985). “In order to discharge this burden, the agency ‘must\nprove that each document that falls within the class requested either has been\nproduced, is unidentifiable, or is wholly exempt from the Act’s inspection\nrequirements.’” Id. at 1382-83 (emphasis added) (quoting Nat’l Cable Television\nAss’n, Inc. v. FCC, 479 F.2d 183, 186 (D.C. Cir. 1973)).\n\n A. Statutory Text\n “Our analysis begins, as always, with the statutory text.” United States v.\nGonzales, 520 U.S. 1, 4 (1997). The relevant text of FOIA Exemption 3 allows\nagencies to withhold information that is\n\n specifically exempted from disclosure by statute (other than [5 U.S.C.\n § 552b]), if that statute—\n\n (A)(i) requires that the matters be withheld from the public in such a\n manner as to leave no discretion on the issue; or\n\n (ii) establishes particular criteria for withholding or refers to particular\n types of matters to be withheld[.5]\n\n5 U.S.C. § 552(b)(3) (emphasis added). The department contends the spending\ninformation is “specifically exempted” by 7 U.S.C. § 2018(c). Argus does not dispute\n\n\n\n 5\n There is one additional requirement not applicable to this case.\n\n -5-\n\fthat § 2018(c) is a withholding statute (i.e., one that “requires,” “establishes,” or\n“refers” to non-discretionary or particular withholding of information).\n\n Instead, Argus challenges the district court’s conclusion that program spending\ninformation falls within the withholding contemplated by § 2018(c). Again, we look\nto the relevant statutory text:\n\n (c) Information submitted by applicants; safeguards; disclosure to and\n use by State agencies\n\n Regulations issued pursuant to this chapter shall require an applicant\n retail food store or wholesale food concern to submit information,\n which may include relevant income and sales tax filing documents,\n which will permit a determination to be made as to whether such\n applicant qualifies, or continues to qualify, for approval . . . .\n Regulations issued pursuant to this chapter shall provide for safeguards\n which limit the use or disclosure of information obtained under the\n authority granted by this subsection . . . . Any person who publishes,\n divulges, discloses, or makes known in any manner or to any extent not\n authorized by Federal law (including a regulation) any information\n obtained under this subsection shall be fined not more than $1,000 or\n imprisoned not more than 1 year, or both.\n\n7 U.S.C. § 2018(c) (emphasis added).\n\n Because the retailer spending information is not “submit[ted]” by “an applicant\nretail food store or wholesale food concern,” id., the information is not exempt from\ndisclosure. The department, not any retailer, generates the information, and the\nunderlying data is “obtained” from third-party payment processors, not from\nindividual retailers. See, e.g., Brian A. Garner’s Modern American Usage 74 (3d ed.\n2009) (defining “obtain” as “to get, acquire”); Webster’s Third New Int’l Dictionary\n1559 (1993) (defining “obtain” as “to gain or attain possession or disposal of”).\nNeither of the forms used to determine whether a given retailer “qualifies” or\n\n -6-\n\f“continues to qualify” as a program participant asks for the spending information.\nThese plain textual reasons for rejecting the department’s position mean we need not\nrely on the Supreme Court’s admonition that FOIA exemptions “must be ‘narrowly\nconstrued,’” Milner v. Dep’t of Navy, 562 U.S. ___, ___, 131 S. Ct. 1259, 1262\n(2011) (quoting FBI v. Abramson, 456 U.S. 615, 630 (1982)), to conclude retailer\nspending information is not “obtained under the authority granted by” § 2018(c).\n\n Our plain reading is further confirmed by the subsection heading, which refers\nto “Information submitted by applicants.” 7 U.S.C. § 2018(c) (emphasis added). A\nsubsection “heading cannot substitute for the operative text of the statute.” Fla. Dep’t\nof Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47 (2008). But “statutory titles\nand section headings ‘are tools available for the resolution of a doubt about the\nmeaning of a statute.’” Id. (quoting Porter v. Nussle, 534 U.S. 516, 528 (2002)).\nEven if the statutory text left any ambiguity, the heading would resolve that doubt in\nfavor of disclosure.\n\n The district court’s contrary conclusion stemmed from a misreading of the\nstatute. First, the district court singled out the term “any information,” interpreting\nthe statute to require withholding of all information—regardless of its source—used\nto determine whether “a retailer qualifies or continues to qualify for participation in\nthe [program].” Yet the statute makes clear that only information obtained under\n§ 2018(c)—submitted by a retailer—is exempted. When the statute says “obtained”\nit means “obtained,” not “can be obtained,” as the district court reasoned. (Emphasis\nadded). “Congress expresses its purpose by words. It is for [courts] to\nascertain—neither to add nor to subtract, neither to delete nor to distort.” 62 Cases,\nMore or Less, Each Containing Six Jars of Jam v. United States, 340 U.S. 593, 596\n(1951). Here, however else the spending information could be obtained, the\ndepartment actually obtained it from third-party payment processors, not the retailers\nthemselves.\n\n\n\n -7-\n\f Second, the district court thought the spending information qualified as\n“relevant income and sales tax filing documents.” The district court opined,\n“Although Congress has not expressly deemed redemption information as essential\ndata to be included under § 2018, the statutory language encompasses this type of\nincome and tax information because redemption data naturally falls under either\nterm’s broad umbrella.” Again, the district court departed from the plain text of the\nstatute, which refers to “income and sales tax filing documents.” 7 U.S.C. § 2018(c)\n(emphasis added). These words—confirmed by the requirement to “provide written\nauthorization for the Secretary to verify all relevant tax filings with appropriate\nagencies”—plainly refer to tax documents filed with relevant state, local, and federal\ntax authorities. Id. (emphasis added). Echoing the Supreme Court, we “have stated\ntime and again that courts must presume that a legislature says in a statute what it\nmeans and means in a statute what it says there. When the words of a statute are\nunambiguous, then, this first canon is also the last: judicial inquiry is complete.”\nBarnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62 (2002) (internal quotation\nomitted); see, e.g., Owner-Operator Indep. Drivers Ass’n, Inc. v. Supervalu, Inc., 651\nF.3d 857, 862 (8th Cir. 2011). The spending information is not a tax filing document,\nso the district court’s “broad umbrella” cannot shade the spending information from\nthe sunlight.\n\n B. Statutory History\n Although “the authoritative statement is the statutory text, not the legislative\nhistory,” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005), we\nrecognize that the district court relied in part on the legislative history. While\nresolving this case purely on textual grounds, we observe “for those who find\nlegislative history useful,” United States v. Tinklenberg, 563 U.S. ___, ___, 131 S.\nCt. 2007, 2015 (2011), that this history is more fairly read to support Argus’ position.\n\n First, Congress has clearly indicated its intent to involve the public in\ncounteracting fraud perpetrated by retailers participating in the program. See, e.g.,\n\n -8-\n\fFood Stamp and Commodity Distribution Amendments of 1981, Pub. L. No. 97–98,\n§ 1314, 95 Stat. 1213, 1285 (codified as amended at 7 U.S.C. § 2018(e)).\n\n Second, the statutory history reveals that redemptions were historically\ngoverned not by § 2018(c), but by an entirely different section: 7 U.S.C. § 2019. See\nFood Stamp Act of 1977, Pub. L. No. 95–113, sec. 1301, § 10, 91 Stat. 913, 969\n(codified as amended at 7 U.S.C. § 2019). Thus, Congress apparently never expected\nthe department to obtain redemption data, used to generate the requested spending\ninformation, “under the authority granted by [§ 2018(c)].” 7 U.S.C. § 2018(c).\n\n Noting the history of § 2018(c) but relying on its plain text, we conclude\nExemption 3 cannot prevent Argus from “pierc[ing] the veil of administrative secrecy\nand . . . open[ing] [the department’s] action[s] to the light of public scrutiny.” Dep’t\nof Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation omitted).\n\nIII. CONCLUSION\n We reverse and remand for further proceedings consistent with this opinion.\n ______________________________\n\n\n\n\n -9-\n\f", "ocr": false, "opinion_id": 2651309 } ]
Eighth Circuit
Court of Appeals for the Eighth Circuit
F
USA, Federal
124,291
null
2002-10-15
false
russell-v-mississippi-department-of-corrections
Russell
Russell v. Mississippi Department of Corrections
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "537 U.S. 955" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/US/537/537.US.955.02-5786.html", "author_id": null, "opinion_text": "537 U.S. 955\n RUSSELLv.MISSISSIPPI DEPARTMENT OF CORRECTIONS.\n No. 02-5786.\n Supreme Court of United States.\n October 15, 2002.\n \n 1\n CERTIORARI TO THE SUPREME COURT OF MISSOURI.\n \n \n 2\n Sup. Ct. Miss. Certiorari denied. Reported below: 814 So. 2d 802.\n \n ", "ocr": false, "opinion_id": 124291 } ]
Supreme Court
Supreme Court of the United States
F
USA, Federal
566,451
Baldock, Logan, Moore
1991-08-13
false
united-states-v-felipe-alamillo
null
United States v. Felipe Alamillo
UNITED STATES of America, Plaintiff-Appellee, v. Felipe ALAMILLO, Defendant-Appellant
Michael J. Norton, U.S. Atty. and James P. Moran, Asst. U.S. Atty., Denver, Colo., on the brief, for plaintiff-appellee., Felipe Alamillo, pro se.
null
null
null
null
null
null
null
null
null
null
16
Published
null
<parties id="b1165-6"> UNITED STATES of America, Plaintiff-Appellee, v. Felipe ALAMILLO, Defendant-Appellant. </parties><br><docketnumber id="b1165-9"> No. 91-1129. </docketnumber><br><court id="b1165-10"> United States Court of Appeals, Tenth Circuit. </court><br><decisiondate id="b1165-12"> Aug. 13, 1991. </decisiondate><br><attorneys id="b1165-18"> Michael J. Norton, U.S. Atty. and James P. Moran, Asst. U.S. Atty., Denver, Colo., on the brief, for plaintiff-appellee. </attorneys><br><attorneys id="b1165-19"> Felipe Alamillo, pro se. </attorneys><br><judges id="b1165-20"> Before LOGAN, MOORE, and BALDOCK, Circuit Judges. </judges>
[ "941 F.2d 1085" ]
[ { "author_str": "Moore", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/941/941.F2d.1085.91-1129.html", "author_id": null, "opinion_text": "941 F.2d 1085\n UNITED STATES of America, Plaintiff-Appellee,v.Felipe ALAMILLO, Defendant-Appellant.\n No. 91-1129.\n United States Court of Appeals,Tenth Circuit.\n Aug. 13, 1991.\n \n Michael J. Norton, U.S. Atty. and James P. Moran, Asst. U.S. Atty., Denver, Colo., on the brief, for plaintiff-appellee.\n Felipe Alamillo, pro se.\n Before LOGAN, MOORE, and BALDOCK, Circuit Judges.\n MOORE, Circuit Judge.\n \n \n 1\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.\n \n \n 2\n This is an appeal from the denial of a motion for relief under 28 U.S.C. &#167; 2255. See United States v. Alamillo, 754 F. Supp. 827 (D.Colo.1990). Appellant, Felipe Alamillo, contends the district court erred in not vacating his sentence because the sentence includes a provision for supervised release. We affirm.\n \n \n 3\n Mr. Alamillo was convicted on three counts relating to the possession and distribution of marijuana and sentenced to concurrent thirty-three month terms. In addition, the district court imposed a three-year term of supervised release under 18 U.S.C. &#167; 3583.\n \n \n 4\n In his &#167; 2255 motion in the district court, Mr. Alamillo argued supervised release violates the constitutional prohibition of double jeopardy; constitutes cruel and unusual punishment; violates his rights to free association, due process, and equal protection; and, is an impermissible \"bill of attainder.\" In a supplemental pleading, Mr. Alamillo argued in the imposition of sentence the district court violated Fed.R.Crim.P. 11(c)(1). We agree with the district court's disposition of those issues and affirm substantially for the reasons set forth in the court's published order.\n \n \n 5\n On appeal, Mr. Alamillo raises an argument not presented to the district court. He contends the Sentencing Reform Act of 1984 is invalid because it violates the constitutional requirement of separation of powers. While we do not ordinarily consider arguments raised for the first time on appeal, United States v. Orr, 864 F.2d 1505, 1508 (10th Cir.1988), we note the issue is without merit. Mistretta v. United States, 488 U.S. 361, 412, 109 S. Ct. 647, 102 L. Ed. 2d 714 (1989).\n \n \n 6\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 566451 } ]
Tenth Circuit
Court of Appeals for the Tenth Circuit
F
USA, Federal
1,358,561
Andrews, Ellington, Ruffin
2000-09-27
false
hudson-v-state
Hudson
Hudson v. State
Hudson v. the State
James W. Bradley, for appellant., Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.
null
null
null
null
null
null
null
Reconsideration denied October 11, 2000.
null
null
8
Published
null
<docketnumber id="b365-10"> A00A1371. </docketnumber><parties id="AC8"> HUDSON v. THE STATE. </parties><br><citation id="b365-11"> (539 SE2d 860) </citation>
[ "539 S.E.2d 860", "246 Ga. App. 335" ]
[ { "author_str": "Ruffin", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7178, "opinion_text": "\n539 S.E.2d 860 (2000)\n246 Ga. App. 335\nHUDSON\nv.\nThe STATE.\nNo. A00A1371.\nCourt of Appeals of Georgia.\nSeptember 27, 2000.\nReconsideration Denied October 11, 2000.\n*861 James W. Bradley, Jonesboro, for appellant.\nRobert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.\nRUFFIN, Judge.\nArthur Hudson was convicted of armed robbery and kidnapping. He appeals, asserting several enumerations of error. For reasons discussed below, we affirm.\n1. In three enumerations, Hudson challenges the sufficiency of the evidence presented at trial. However, Hudson has failed to include a statement of facts in his brief, as required by Court of Appeals Rule 27(a)(1), and has failed to cite to, or even mention, any facts in the argument section of his brief, as required by Court of Appeals Rule 27(c)(3). As we have reiterated time and time again, this Court will not cull the record in search of error on behalf of a party.[1] Because Hudson has not supported these enumerations with appropriate citations to the record or to authority, they are deemed abandoned.[2]\n2. Hudson contends that the trial court erred in giving a recharge on recent possession. His one-sentence \"argument\" states that \"[t]he repetition of the recent possession charge alone and out of the context of the remainder of the charge served to over emphasize that principle and negate the application of the other legal theories described in the charge.\" However, Hudson does not provide any record citations to the objectionable charge, does not discuss the substance of the charge or show that it was given \"alone\" or \"out of context,\"[3] does not show that he objected to the charge, does not provide any argument showing how the *862 charge \"negated\" other legal theories, and does not even mention what those other theories might be. This is not the type \"argument\" necessary to preserve an issue for appellate review.[4]\n3. Finally, Hudson asserts that, while giving an Allen charge to the jury, the trial court violated OCGA § 17-8-57 by using the word \"convicted\" instead of \"convinced.\"[5] However, the supplemental transcript indicates that the word was simply misspelled in the original transcript, and that the trial court actually used the word \"convinced.\" In any event, Hudson failed to object to any alleged violation of OCGA § 17-8-57, and has thus waived this issue for appeal.[6]\n4. We take this opportunity to remind all attorneys—including those appointed due to a defendant's indigence—that our appellate rules are designed to facilitate the consideration of enumerated errors, and that compliance with such rules is not optional. As discussed above, the brief in this case did not contain a statement of facts, which makes it difficult to determine what this case is even about, much less allow this Court to perform any meaningful analysis of the asserted errors. We find it difficult to see how an attorney could file an appeal of a criminal conviction, challenging in part the sufficiency of the evidence, and not provide even a minimal discussion of the facts to acquaint the appellate court with the nature of the case. The absence of any factual context makes it almost impossible to give any thoughtful consideration to the asserted errors, especially where the record includes over 1,000 pages of transcript covering two separate jury trials.\nThe \"argument\" section of the brief is no more illuminating than the nonexistent discussion of the facts. Each enumeration is supported by no more than one paragraph of \"argument\"—for two of the enumerations, it is only one sentence. As discussed above, one of these one-sentence arguments misrepresents the nature of a jury instruction, and fails to cite to that portion of the record where the misrepresentation may be discovered. Two of the enumerations are lumped together, in violation of Court of Appeals Rule 27(c)(1). There is not a single citation to authority (other than a bare citation, without elaboration, to OCGA § 17-8-57), no discussion of the facts, and certainly nothing that would merit the description \"legal argument.\" Moreover, there is no statement of the applicable standard of review or of the manner in which errors were preserved, as required by Court of Appeals Rule 27(a).\nAlthough we recognize that criminal defense attorneys are often required to file appeals where there is no reasonable expectation of reversal, this provides no excuse for a disregard of appellate rules designed to facilitate the consideration of enumerated errors.\nJudgment affirmed.\nANDREWS, P.J., and ELLINGTON, J., concur.\nNOTES\n[1] See Cobb v. State, 236 Ga.App. 265, 268(3)(a), 511 S.E.2d 522 (1999).\n[2] See id.\n[3] Although Hudson did not cite to the disputed charge, we have reviewed the relevant portion of the record, which suggests that Hudson has misrepresented the nature of the recharge. The court did not, as Hudson states, repeat the recent possession charge \"alone and out of context.\" To the contrary, the court recharged the jury on the presumption of innocence, the burden of proof, the definition of reasonable doubt, the definition of armed robbery, and the definition of kidnapping. The instruction on recent possession was included as part of the instruction on armed robbery, and was not given \"alone,\" as Hudson asserts.\n[4] See Clark v. Stafford, 239 Ga.App. 69, 74(4), 522 S.E.2d 6 (1999).\n[5] Hudson's entire \"argument\" on this enumeration is as follows: \"The Honorable Trial Court's use of the word `Convicted' suggests an illegal impression of opinion from the bench that this jury should `Convict' this Defendant. O.C.G.A. 17-8-57.\"\n[6] See Crowe v. State, 265 Ga. 582, 594(19), 458 S.E.2d 799 (1995) (question of whether OCGA § 17-8-57 has been violated is not reached unless objection or motion for mistrial is made).\n\n", "ocr": false, "opinion_id": 1358561 } ]
Court of Appeals of Georgia
Court of Appeals of Georgia
SA
Georgia, GA
2,622,937
George
2008-01-16
false
people-v-ceja
Ceja
People v. Ceja
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "175 P.3d 2", "71 Cal. Rptr. 3d 251" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3809, "opinion_text": "\n71 Cal.Rptr.3d 251 (2008)\n175 P.3d 2\nPEOPLE\nv.\nCEJA (Rafael).\nNo. 157932.\nSupreme Court of California.\nJanuary 16, 2008.\nPetition for review granted (criminal case).\nGEORGE, C.J., and KENNARD, BAXTER, WERDEGAR, CHIN, MORENO, and CORRIGAN, JJ., concur.\n", "ocr": false, "opinion_id": 2622937 } ]
California Supreme Court
California Supreme Court
S
California, CA
2,703,726
Jones
2012-03-19
false
state-v-murphy
null
State v. Murphy
null
null
null
null
null
null
null
null
null
null
null
null
3
Published
null
null
[ "2012 Ohio 1186" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2012/2012-ohio-1186.pdf", "author_id": 8107, "opinion_text": "[Cite as State v. Murphy, 2012-Ohio-1186.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n No. 95705\n\n\n\n STATE OF OHIO\n PLAINTIFF-APPELLEE\n\n vs.\n\n JAYSON S. MURPHY\n DEFENDANT-APPELLANT\n\n\n\n\n JUDGMENT:\n APPLICATION DENIED\n\n\n Cuyahoga County Court of Common Pleas\n Case No. CR-530815\n Application for Reopening\n Motion No. 448609\n\n\n RELEASE DATE: March 19, 2012\nFOR APPELLANT\n\fJayson Murphy\nInmate No. 591-367\nMansfield Correctional Inst.\nP. O. Box 788\nMansfield, OH 44901\n\nATTORNEYS FOR APPELLEE\n\nWilliam D. Mason\nCuyahoga County Prosecutor\n\nBy: Anna M. Faraglia\nMary McGrath\nAssistant Prosecuting Attorneys\nThe Justice Center, 8th Fl.\n1200 Ontario Street\nCleveland, OH 44113\n\fLARRY A. JONES, SR., J.:\n\n {¶1} On October 17, 2011, the applicant, Jayson Murphy, applied pursuant to\n\nApp.R. 26(B) and State v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204 (1992), to\n\nreopen this court’s judgment in State v. Murphy, 8th Dist. No. 95705, 2011-Ohio-3686, in\n\nwhich this court affirmed Murphy’s convictions for four counts of sexual battery. 1\n\nMurphy maintains that his appellate counsel was ineffective, because she should have\n\nargued sufficiency of the evidence, prosecutorial misconduct, inconsistent jury verdicts,\n\nthe failure to request lesser included offenses, and allied offenses properly. On\n\nNovember 3, 2011, the state of Ohio filed its brief in opposition, and Murphy filed a\n\nreply brief on November 15, 2011. For the following reasons, this court denies the\n\napplication.\n\n {¶2} In order to establish a claim of ineffective assistance of appellate counsel, the\n\napplicant must demonstrate that counsel’s performance was deficient and that the\n\n The grand jury indicted Murphy on four counts of rape, four counts of sexual battery,\n 1\n\n\none count of kidnapping, and one count intimidation of a crime witness. At trial the evidence\nshowed that the victim and Murphy had been in a sexual relationship for several months.\nHowever, on the night in question, the victim took a sleeping pill. While she was asleep,\nMurphy took photographs of sexual acts he committed on her. The victim testified that in the\nmorning Murphy showed her the pictures and told her that if she did not stay with him, he\nwould put the pictures on the internet. The jury found Murphy guilty of the four counts of\nsexual battery and not guilty on the other charges. The trial judge sentenced him to five\nyears on each count consecutive.\n\fdeficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668,\n\n104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d\n\n373 (1989); and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.\n\n {¶3} In Strickland the United States Supreme Court ruled that judicial scrutiny of\n\nan attorney’s work must be highly deferential. The Court noted that it is all too\n\ntempting for a defendant to second-guess his lawyer after conviction and that it would be\n\nall too easy for a court, examining an unsuccessful defense in hindsight, to conclude that\n\na particular act or omission was deficient. Therefore, “a court must indulge a strong\n\npresumption that counsel’s conduct falls within the wide range of reasonable professional\n\nassistance; that is, the defendant must overcome the presumption that, under the\n\ncircumstances, the challenged action ‘might be considered sound trial strategy.’”\n\nStrickland, 104 S.Ct. at 2065.\n\n {¶4} Specifically, in regard to claims of ineffective assistance of appellate counsel,\n\nthe United States Supreme Court has upheld the appellate advocate’s prerogative to\n\ndecide strategy and tactics by selecting what he thinks are the most promising arguments\n\nout of all possible contentions. The court noted: “Experienced advocates since time\n\nbeyond memory have emphasized the importance of winnowing out weaker arguments\n\non appeal and focusing on one central issue if possible, or at most on a few key issues.”\n\nJones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983). Indeed,\n\nincluding weaker arguments might lessen the impact of the stronger ones. Accordingly,\n\nthe Court ruled that judges should not second-guess reasonable professional judgments\n\fand impose on appellate counsel the duty to raise every “colorable” issue. Such rules\n\nwould disserve the goal of vigorous and effective advocacy. The Supreme Court of\n\nOhio reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172, 1996-Ohio-366,\n\n672 N.E.2d 638.\n\n {¶5} Moreover, even if a petitioner establishes that an error by his lawyer was\n\nprofessionally unreasonable under all the circumstances of the case, the petitioner must\n\nfurther establish prejudice: but for the unreasonable error there is a reasonable probability\n\nthat the results of the proceeding would have been different. A reasonable probability is\n\na probability sufficient to undermine confidence in the outcome. A court need not\n\ndetermine whether counsel’s performance was deficient before examining prejudice\n\nsuffered by the defendant as a result of alleged deficiencies.\n\n {¶6} Murphy contends that his appellate counsel should have argued sufficiency\n\nof the evidence. However, he cannot show prejudice. His appellate counsel did argue\n\nmanifest weight of the evidence. In State v. Kryzwkowski, 8th Dist. No. 80392,\n\n2002-Ohio-4438, 2002 WL 1987257, reopening disallowed, 2003-Ohio-3209, this court\n\nruled: “In determining that the judgment was not against the manifest weight of the\n\nevidence, this court was required to go beyond the question of law which a claim of\n\ninsufficiency of the evidence would present and examine the broader issues of credibility,\n\netc. Appellate counsel did not, therefore, violate any essential duty to applicant nor was\n\napplicant prejudiced by the absence of an assignment of error asserting insufficiency of\n\nthe evidence,” citing State v. Dines, 8th Dist. No. 57661, 1990 WL 166452 (Nov. 1,\n\f1990), reopening disallowed, Motion Nos. 43617, 42620, 42628 and 48243 (May 26,\n\n1994) (Slip op. at pg. 8). Similarly in State v. Peterson, 8th Dist. 88248,\n\n2007-Ohio-1837, 2007 WL 1153434, ¶ 19 this court observed that although sufficiency\n\nand manifest weight are different legal concepts, manifest weight may subsume\n\nsufficiency when conducting the analysis; i.e., a finding that a conviction was supported\n\nby the manifest weight of the evidence necessarily includes a finding of sufficiency.\n\nState v. Logan, 8th Dist. No 88472, 2007-Ohio-2636, 2007 WL 1559305, reopening\n\ndisallowed, 2008-Ohio-1934. The court further notes that Murphy incorporated\n\nverbatim large sections of his appellate counsel’s argument on manifest weight into his\n\nargument on sufficiency. Accordingly, this argument on ineffective assistance of\n\nappellate counsel is unpersuasive.\n\n {¶7} Next, Murphy argues that his appellate counsel should have argued\n\nprosecutorial misconduct for cross-examining him on his drug offense and domestic\n\nviolence convictions, his drinking habits, and temper. However, his appellate counsel\n\nargued this same issue of ineffective assistance of trial counsel. Indeed, most of\n\nMurphy’s argument about prosecutorial misconduct is again a verbatim incorporation of\n\nhis appellate counsel’s brief on this point. This court examined the issue and concluded\n\nthat the prosecutor’s questions on cross-examination were not improper, because Murphy\n\nhad “opened the door” and placed his credibility in issue. Thus, Murphy has not\n\nestablished prejudice.\n\f {¶8} Murphy’s third argument is that appellate counsel did not raise the issue of\n\nlesser included offenses. This argument is unpersuasive because Murphy never states\n\nwhat the lesser included offenses were. Without that information, this court cannot\n\nexamine, much less determine, whether instructions for a lesser included offense would\n\nhave been appropriate or could have been given. Moreover, the decision to request a\n\njury instruction for a lesser included offense constitutes trial strategy and does not\n\nprovide a basis for claiming ineffective assistance of counsel. State v. Caldwell, 8th\n\nDist. No. 80556, 2002-Ohio-4911, 2002 WL 31087623 reopening disallowed,\n\n2005-Ohio-5134; and State v. Griffie, 74 Ohio St.3d 332, 333, 1996-Ohio-71, 658 N.E.2d\n\n764. Indeed, the record indicates that Murphy decided as a matter of trial strategy not to\n\nask for instructions on a lesser included offense. (Tr. 589.)\n\n {¶9} Murphy’s fourth assignment of error is ill-founded. He argues that the\n\njury’s finding him not guilty of rape is necessarily inconsistent with the finding of guilty\n\non sexual battery, because the jury must have found consent to find him not guilty of\n\nrape, and that consent should have exonerated him on the sexual battery counts.\n\nHowever, his own authority, State v. Brown, 12 Ohio St.3d 147, 465 N.E.2d 889 (1984),\n\nrefutes his position. The court held that the several counts in an indictment containing\n\nmore than one count are not interdependent, and an inconsistency in a verdict does not\n\narise out of inconsistent responses to different counts, but only arises out of inconsistent\n\nresponses to the same count. Thus, the counts on rape and sexual battery are not\n\ninterdependent and cannot provide the basis for arguing inconsistent verdicts.\n\fMoreover, Murphy’s argument is based on speculation, which he does not support from\n\nthe record, that the jury necessarily determined the rape counts on the issue of consent.\n\nAppellate counsel in the exercise of professional judgment could choose not to raise this\n\nargument.\n\n {¶10} Finally, Murphy argues that his appellate counsel did not correctly argue the\n\nissue of allied offenses. Again, Murphy does not establish prejudice. His appellate\n\ncounsel raised the issue, and this court conducted a full de novo review. It concluded:\n\n“The facts establish that these acts were not a single, continuous sexual act.\n\nAccordingly, the trial court was correct when it found that the four counts of sexual\n\nbattery were not allied offenses of similar import.” Murphy at ¶ 41.\n\n Accordingly, this court denies the application to reopen.\n\n\n\nLARRY A. JONES, SR., JUDGE\n\nPATRICIA A. BLACKMON, P.J., and\nKATHLEEN ANN KEOUGH, J., CONCUR\n\f", "ocr": false, "opinion_id": 2703726 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
2,224,076
Drucker
1975-07-25
false
neal-v-lacob
Neal
Neal v. Lacob
Robert Neal, Plaintiff and Counterdefendant-Appellee, v. Seymour Lacob, Defendant and Counterplaintiff-Appellant
Seymour Lacob, pro se., Cummings & Wyman, of Chicago (Daniel P. Nagle, of counsel), for appellee.
null
null
null
null
null
null
null
null
null
null
18
Published
null
<parties id="b161-4" pgmap="161"> Robert Neal, Plaintiff and Counterdefendant-Appellee, v. Seymour Lacob, Defendant and Counterplaintiff-Appellant. </parties><br><docketnumber id="b161-5" pgmap="161"> (No. 61504; </docketnumber><br><court id="b161-6" pgmap="161"> First District (5th Division) </court><decisiondate id="AME" pgmap="161"> July 25, 1975. </decisiondate><br><attorneys id="b162-4" pgmap="162"> Seymour Lacob, pro se. </attorneys><br><attorneys id="b162-5" pgmap="162"> Cummings &amp; Wyman, of Chicago (Daniel P. Nagle, of counsel), for appellee. </attorneys>
[ "334 N.E.2d 435", "31 Ill. App. 3d 137" ]
[ { "author_str": "Drucker", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n31 Ill. App. 3d 137 (1975)\n334 N.E.2d 435\nROBERT NEAL, Plaintiff and Counterdefendant-Appellee,\nv.\nSEYMOUR LACOB, Defendant and Counterplaintiff-Appellant.\nNo. 61504.\nIllinois Appellate Court — First District (5th Division).\nJuly 25, 1975.\n*138 Seymour Lacob, pro se.\nCummings &amp; Wyman, of Chicago (Daniel P. Nagle, of counsel), for appellee.\nReversed and remanded.\nMr. JUSTICE DRUCKER delivered the opinion of the court:\nPlaintiff brought this action seeking rescission of a contract. Defendant counterclaimed, seeking an accounting and money damages. The trial court found that the contract was unconscionable and consequently held that it \"should be declared null and void\" and that the counterclaim should be dismissed for want of equity. It is defendant's basic contention on appeal that the court's finding of unconscionability is unsupported by the record.\nIn September 1967 plaintiff, an automobile dealer, entered into the contract which is the subject matter of this dispute. In consideration for lending plaintiff $5000 and guaranteeing a $15,000 line of credit at the Independence Bank of Chicago, it was agreed:\n\"1. That ROBERT NEAL so long as he continues to engage either directly or indirectly by his agents or servants in the business of selling automobiles either by way of corporations or individually or partnership agrees to furnish SEYMOUR LACOB a new JAGUAR automobile for his use at no expense to SEYMOUR LACOB; said auto to be returned to ROBERT NEAL each fall.\n2. That in the event that SEYMOUR LACOB is not available to take delivery of said automobile (JAGUAR) then ROBERT NEAL is to furnish said auto to SEYMOUR LACOB'S family.\n3. That ROBERT NEAL is to pay SEYMOUR LACOB his assigns, agents or family the sum of TWENTY FIVE DOLLARS ($25.00) for each new automobile as floor planned &amp; guaranteed sold by said ROBERT NEAL or his agents; in the event that said *139 ROBERT NEAL ceases selling new automobiles then the sum of $25.00 to be paid as directed for the sale of used automobiles sold.\n4. That provision number 3 shall remain in effect so long as ROBERT NEAL either directly or indirectly remains in the business of selling autos.\n5. That ROBERT NEAL shall proceed to pay the FIVE THOUSAND DOLLARS indebtedness commencing OCTOBER 1, 1968 at the rate of $400.00 per month until paid in full.\n6. That the aforementioned loans shall be secured by ROBERT NEAL by liens on all autos presently owned by ROBERT NEAL; said loan further secured by all furniture, tools and assets concurrently situated at COMPETITION MOTORS, LTD., 7729 S. Cottage Grove Ave, Chicago, Illinois.\"\nIt is undisputed that from 1967 until the end of 1971, plaintiff, with only minor variations, agreed to by defendant, performed his obligations under the contract. On May 1, 1973, plaintiff filed his complaint seeking rescission of the contract. His action was predicated on the allegation that the contract was \"unconscionable, usurious and inequitable.\" Defendant filed a counterclaim which alleged that the contract was in actuality a \"joint-venture agreement\" and that he was entitled to an accounting and money judgment.\nAt trial plaintiff testified in his own behalf that he is the president of Bob Neal Pontiac-Toyota, an automobile dealership located in Chicago. At the time of trial he was 41 years old and had been in the automobile business for 13 years. Prior to his entry into the automobile business, he had been a teacher in the Chicago School System for 6 years. He holds a college degree. Plaintiff first met defendant in June 1967 when, pursuant to an \"oral proposition,\" he delivered a Jaguar Roadster sports car to defendant's home. It was plaintiff's proposal that if defendant loaned him $7000 at 10% interest, he would give defendant use of the car. Defendant told him that he would think about it. In September 1967 plaintiff was invited to defendant's home. Defendant informed him that he had a counterproposal which he thought would be acceptable. Defendant then typed up the instrument which is the subject matter of the instant case. Although it was not what plaintiff had in mind, \"it appeared to be satisfactory.\" When he read the contract, plaintiff pointed out to defendant that he wanted defendant to \"participate in profits of new cars sold [only] insofar as they were guaranteed and floor planned by him.\" Defendant agreed and in longhand added to paragraph 3 of the contract, which required that $25 be paid to him for *140 \"each new car sold by\" plaintiff, the words \"as floor planned &amp; guaranteed.\"[*]\nPlaintiff spent 3 to 5 minutes reading the contract and then signed it. He knew that defendant was an attorney. Defendant had not done any legal work for him prior to the execution of the contract. Subsequent to plaintiff's signing the contract, defendant on occasion handled some legal matters for him. Defendant did not bill him for these services. Defendant lent him $5000 which he repaid with interest. In October 1967 defendant submitted to Independence National Bank \"documentation\" to guarantee for plaintiff a $15,000 line of credit. This line of credit was terminated 2 1/2 years later. Subsequent to October 1967 plaintiff applied for and received, without benefit of defendant's guarantee, an additional line of credit. In May 1968 plaintiff delivered to defendant a new Jaguar which defendant returned in September of that year. Again in the spring of 1969 he delivered to defendant a Jaguar which was returned in the fall. In 1970 and 1971 he delivered new Triumph TR-6 Convertibles to defendant. In 1972 he delivered a TVR two-seater sports car. Title for all these cars remained with plaintiff while they were in the possession of defendant.\nPlaintiff did not learn that defendant was contending that he was a \"joint-venturer\" until the filing of the counterclaim. Defendant never asked to share in the profits and losses of the business.\nOn cross-examination plaintiff testified that prior to signing the contract he had several telephone conversations with defendant during which the possibility of defendant guaranteeing a $15,000 line of credit was discussed. Defendant had originally contacted him in response to a 1967 newspaper advertisement for the sale of a Jaguar automobile. During the course of their discussions, plaintiff told defendant that without a guarantor the Independence National Bank would not extend him a line of credit. With a line of credit from the bank he could carry a larger inventory of cars. Plaintiff was satisfied with the contract when he signed it. He entered into it \"willingly.\" At that time he did not think it was *141 unfair that he would be required to furnish defendant or defendant's family a Jaguar for as long as he remained in the business of selling automobiles. The cars were delivered in the spring and returned by defendant in the fall. Plaintiff was able to sell the cars used by defendant. It is \"possible\" that he made a profit on these sales. In 1968 defendant lent him $3000. He repaid the loan. Plaintiff \"lived up\" to the contract until 1972. He stopped making payments to defendant of $25 for every car sold because he was under the impression that after he stopped dealing with the Independence Bank he was not required to do so. In 1967 plaintiff's net worth was $22,000;[**] at the time of trial it was $60,000 or $70,000.\nOn redirect examination plaintiff testified that he paid defendant $25 for the sale of each of 163 new cars.\nSarah Lacob, defendant's wife, testified on his behalf that he first contacted plaintiff in response to a newspaper advertisement regarding the sale of a Jaguar automobile. She was present in September 1967 when defendant typed up the contract. Plaintiff and his wife were also present. Plaintiff suggested the handwritten amendment to paragraph 3. In 1967 she had occasion to visit plaintiff's place of business. She saw no new cars there nor did she see any sales personnel, mechanics or office help.\nDefendant testified on his own behalf that he first contacted plaintiff in response to a newspaper advertisement. Plaintiff drove the Jaguar to defendant's home for him to inspect. At that time plaintiff proposed that if defendant would lend him some money to go into business, defendant could have use of the car. Defendant, at plaintiff's invitation, went to plaintiff's place of business to continue these negotiations. He did not see any new cars there nor did he see any employees. Plaintiff proposed that defendant go with him to the Independence Bank to guarantee a line of credit so plaintiff \"could get a Toyota line.\" Plaintiff agreed to make a new Jaguar available to defendant and his family \"every year [plaintiff] was in business\" if defendant would assist him in acquiring a Toyota line. During these negotiations plaintiff offered him \"a share of the business\" if defendant would assist him in getting a $15,000 line of credit. Defendant responded to this proposal, \"I don't want a share of your business, however, I would be interested in being a sort of silent partner * * *.\" The contract that was agreed upon was worded to incorporate defendant's desire \"to be paid for every car that was sold by virtue of [his] guarantee.\" As other good and valuable consideration, defendant agreed to provide his legal services to assist in the operation *142 of the business. During \"the latter part of 1972\" plaintiff informed defendant that while he no longer intended to pay him $25 for every new car sold, he would comply with \"the Jaguar provision of the contract.\"\n\nOPINION\nDefendant contends that the trial court erred in finding the contract to be \"unconscionable.\" He argues that the contract was a valid joint venture agreement between himself and plaintiff under which plaintiff was obligated to supply him or his family with a new Jaguar every year and pay $25 for each new car sold for as long as plaintiff remained in the business of selling automobiles. Plaintiff counters that defendant, taking advantage of their friendship and his position as an attorney, lured him into signing the contract. He argues that defendant's consideration was minuscule in relation to the benefits he derived under the contract.\n• 1, 2 Traditionally an unconscionable bargain has been defined as one \"which no man in his senses, not under delusion, would make, on the one hand, and which no fair and honest man would accept, on the other * * *.\" (Hume v. United States (1889), 132 U.S. 406, 410.) The term is used to signify a contract that is improvident, totally one-sided or oppressive. (See Annot., 18 A.L.R. 3d 1305, 1306 (1968).) Where a contract is found to be unconscionable, courts will refuse to give full effect to it as written. (See Williams v. Walker-Thomas Furniture Co. (1965), 121 U.S. App. D.C. 315, 350 F.2d 445.) In the context of dealings between businessmen, the unconscionability doctrine has been applied to protect those in need of goods of services from being overreached by others who have the power to drive hard bargains. (Cf. Bisso v. Inland Waterways Corp., 349 U.S. 85, 91.) However, it is to be noted that in the absence of fraud, mistake or duress, courts are reluctant to strike down contracts for \"[p]eople should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain.\" Carlson v. Hamilton, 8 Utah 2d 272, 274, 332 P.2d 989.\n• 3 We believe that in determining whether a contract such as the one here at issue is unconscionable, such factors as the age and education of the contracting parties, their commercial experience and their relative bargaining positions should be considered. In the instant case the record reveals that plaintiff was a college graduate. He was almost 40 years of age at the time the contract was signed and had been in the automobile business for a number of years. The contract was drafted by defendant only after he had several discussions with plaintiff regarding plaintiff's need of capital to expand his business. After negotiating a *143 modification of the typewritten proposal prepared by defendant in September 1967, plaintiff \"willingly\" signed it. He testified that the contract \"appeared to be satisfactory.\" Plaintiff fulfilled his obligations under the contract, without complaint, for several years. It does not appear that defendant lured plaintiff into signing the contract by taking advantage of an attorney-client relationship; the evidence seems clear that at the time the contract was signed, no such relationship existed between the parties. Although plaintiff was aware that defendant was an attorney, the negotiations leading up to the signing of the contract were conducted at arm's length. Moreover, we note that while it appears that subsequent to the signing of the contract, plaintiff developed a substantial automobile dealership, in 1967 plaintiff's business was a veritable \"shoestring operation.\" Nevertheless, the record demonstrates that defendant risked $20,000, a cash loan of $5000 and a guarantee of a $15,000 line of credit on the hope that plaintiff's business would be a success. Clearly, then, defendant's consideration under the contract was substantial. On the basis of this record we must reverse the trial court's holding that the contract was \"unconscionable.\"\n• 4 Although we agree with defendant's contention that the contract was not unconscionable, we cannot agree with his claim that it created a joint venture relationship between himself and plaintiff. In Electrical Contractors, Inc. v. Goldberg &amp; O'Brien Electric Co., 29 Ill. App. 3d 819, our court recently had occasion to examine the nature of the joint venture relationship:\n\"[T]o constitute a joint venture, there must be a community of interest and the right to joint control. (Finn v. Drtina (1948), 30 Wash.2d 814, 194 P.2d 347; 46 Am.Jur.2d Joint Ventures § 12.) Some courts have said that the most important criterion of a joint venture is joint control and management of the property used in accomplishing its aims. (Detachable Bit Co. v. Timken Roller Bearing Co. (6th Cir.1943), 133 F.2d 632, 635; Chisholm v. Gilmer (4th Cir.1936), 81 F.2d 120.) In fact, one court went to the extent of saying that `* * * there can be no joint venture or common enterprise of legal important unless there be a community of interest in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other in respect thereto.' (Crutti v. Frank (La. App. 1962), 146 So. 2d 474, 479.) Another has pointed out that `[w]here the right to control is lacking, a joint enterprise does not exist.' Bainbrich v. Wells (Colo. App. 1970), 476 P.2d 53, 54.\" 29 Ill. App. 3d 819, 823.\nIn the case at bar the written contract contains no hint that the parties *144 intended defendant to have any right to exercise control or management over the conduct of plaintiff's automobile dealership. The record is manifest that defendant never attempted to assert such a right. Plainly, then, defendant is not a joint venturer in plaintiff's business.\n• 5 As we have indicated above, it is our view of the instant contract that it is neither an unconscionable bargain unenforceable against plaintiff, nor is it a joint venture agreement giving defendant a perpetual right to a share of the profits of plaintiff's business. Rather, guided by the recent decision in Keeshin v. Levin, 31 Ill. App. 3d 790, which cited 17 Am.Jur.2d Contracts § 325, we have analyzed the intent of the parties \"by a fair construction of the terms and provisions of the contract itself, by the subject matter to which it has reference and by the circumstances of the particular transaction giving rise to the question\" and hold that the instant contract contains two severable provisions, one of which has terminated, the other remaining in force. Essentially the contract here provided that in return for a $5000 loan and a guarantee of a $15,000 line of credit at the Independence Bank of Chicago, plaintiff agreed to provide defendant or his family with the use of a new Jaguar every year he remained in the automobile business and, in addition, $25 for each new car sold \"as floor planned and guaranteed * * * by [defendant].\" These provisions are severable. Our view is reinforced by an examination of the record in its entirety. It reveals that plaintiff was anxious to expand the scope of his operation. In order to do so he needed to obtain a line of credit from a bank. Apparently he could not obtain such a line of credit unless it was guaranteed by a third party. Defendant proposed that he provide such a guarantee if plaintiff agreed to pay him $25 for each new car plaintiff sold. At plaintiff's insistence this provision was limited to cars sold \"by virtue of defendant's guarantee\" of plaintiff's line of credit at the Independence Bank of Chicago. When this line of credit was terminated, it was the intent of the parties that defendant's right to $25 for each new car sold would end. The parties in addition also agreed that defendant or his family would be given the use of a new Jaguar every year for enabling plaintiff to expand his inventory of new cars. Thus, while the provision calling for $25 to be paid defendant for each new car sold ended when plaintiff terminated his line of credit guaranteed by defendant at the Independence Bank, plaintiff's obligation to provide defendant with the use of a new Jaguar continues to run.\nAccordingly we reverse the judgment entered below and remand the cause with directions that a judgment be entered finding (1) the provision of the contract that $25 be paid to defendant for each new car *145 sold by plaintiff by virtue of the floor plan financing guaranteed by defendant's $15,000 (paragraphs 3 and 4 thereof) is of no further force and effect, and (2) the provision of the contract that defendant be provided with the use of a new automobile from spring to fall (paragraphs 1 and 2 thereof) is in full force and effect; and that a hearing be granted on defendant's counterclaim to determine the fair rental value of a new automobile for that period of time during which defendant was not provided with the use of a car by plaintiff.\nReversed and remanded with directions.\nLORENZ and SULLIVAN, JJ., concur.\nNOTES\n[*] In Beutel, Bank Officers Handbook of Commercial Banking Law § 15-25, at 199 (4th ed. 1974), the following discussion of \"floor plan financing\" appears:\n\n\"Sometimes, when the debtor is a merchant or manufacturer who intends to sell the goods the bank or other creditor is financing, the creditor allows the goods so securing the loan to be placed in the inventory of the debtor or displayed for sale. The contract of security may provide that, as goods are to be sold and replaced, the replacements are to become part of the security. This so-called floor plan financing offers very precarious security to the lender, because if the goods are sold in the ordinary course of business or come into the hands of a person who gives new value for them, the security interest is cut off in his favor. This is true even if the buyer knows of the security interest.\"\n[**] We note that among the exhibits introduced below was plaintiff's profit and loss statement for April 1967 which indicates he made a net profit of $97.17.\n\n", "ocr": false, "opinion_id": 2224076 } ]
Appellate Court of Illinois
Appellate Court of Illinois
SA
Illinois, IL
2,651,444
null
2014-01-28
false
quezada-v-city-of-los-angeles
Quezada
Quezada v. City of Los Angeles
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 20, "download_url": "http://www.courtinfo.ca.gov/opinions/documents/B245879M.PDF", "author_id": null, "opinion_text": "Filed 1/28/14 (unmodified opn. attached)\n CERTIFIED FOR PUBLICATION\n\n\n\n IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA\n\n SECOND APPELLATE DISTRICT\n\n DIVISION ONE\n\n\nBELINDA QUEZADA et al., B245879\n (Los Angeles County\n Plaintiffs and Appellants, Super. Ct. No. BC464380)\n\n v. ORDER MODIFYING OPINION\n [NO CHANGE IN JUDGMENT]\nCITY OF LOS ANGELES et al.,\n\n Defendants and Respondents.\n\n\n\n\nTHE COURT:\n It is ordered that the opinion filed herein on January 8, 2014, be modified as\nfollows:\n 1. On page 2, third sentence of the second full paragraph, the name “Weiland’s\nBakery” is changed to “Weiland’s Brewery.”\n 2. On page 3, line 3, the word “intimated” is changed to “intimidated.”\n 3. On pages 5, 7 through 9, 13, and 14 the name “Randall” is changed to\n“Randal.”\n 4. On pages 3, 5, 8, and 15 the name “Ornellas” is changed to “Ornelas.”\n\f There is no change in the judgment.\n CERTIFIED FOR PUBLICATION.\n\n\n_______________________________________________________________________\nROTHSCHILD, Acting P. J. CHANEY, J. JOHNSON, J.\n\n\n\n\n 2\n\fFiled 1/8/14 (unmodified version)\n CERTIFIED FOR PUBLICATION\n\n\n\n IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA\n\n SECOND APPELLATE DISTRICT\n\n DIVISION ONE\n\n\nBELINDA QUEZADA et al., B245879\n\n Plaintiffs and Appellants, (Los Angeles County\n Super. Ct. No. BC464380)\n v.\n\nCITY OF LOS ANGELES et al.,\n\n Defendants and Respondents.\n\n\n\n\n APPEAL from a judgment of the Superior Court of Los Angeles County,\nBarbara M. Scheper, Judge. Affirmed.\n Fullerton & Hanna and Lawrence J. Hanna for Plaintiffs and Appellants Belinda\nQuezada, Abel Cepeida and Enrique Verduzco.\n Carmen A. Trutanich, City Attorney, and Paul L. Winnemore, Deputy City\nAttorney, for Defendants and Respondents City of Los Angeles and Charles Beck, Chief\nof Police.\n ——————————\n\f Plaintiffs Belinda Quezada, Abel Cepeida, and Enrique Verduzco appeal summary\njudgment in their action against the City of Los Angeles (City) and Charles Beck, the\nChief of the Los Angeles Police Department. Plaintiffs, police officers with the City’s\npolice department, sued the City based upon their treatment during a departmental\ninvestigation into the discharge of one of the officer’s weapons while the three officers\nwere off duty and had been drinking at a bar near the police station. Plaintiffs asserted\nclaims for civil rights violations under the Bane Act (Civ. Code, § 52.1) and violations of\nthe Public Safety Officers Bill of Rights Act (Gov. Code, §§ 3300–3313) (POBRA). We\naffirm.\n FACTUAL BACKGROUND AND PROCEDURAL HISTORY\n A. Factual Background\n 1. The Incident\n Plaintiffs are police officers employed by the City’s police department (the\nDepartment). On June 15, 2010, the regular work shift for plaintiffs commenced at\n2:30 p.m. and ended at 11:00 p.m. After their shift ended, the plaintiffs parked their\npersonal vehicles at the Hollenbeck Station parking lot and went to Weiland’s Bakery,\nlocated near the intersection of First Street and Hewitt Street. Quezada had one drink,\nbut Cepeida and Verduzco consumed numerous alcoholic beverages and became\nintoxicated. The three left the bar shortly before closing at 2:00 a.m. on June 16, 2010.\n Quezada was talking on her cell phone and had reached the gate of the Hollenbeck\nsubstation’s parking lot when she heard gunshots. She stopped abruptly and looked\nbehind her. She turned and saw Cepeida and Verduzco behind her. Believing that they\nhad fired a gun, she disarmed both of them. Central Area officers received a report of\n“‘shots fired’” near First and Hewitt Streets. The witness heard approximately five to six\ngunshots, and described the suspects as two male Hispanics in white T-shirts.\n Several patrol cars responded to the scene. Sergeant Hicks, one of the responding\nofficers, ordered plaintiffs “on-duty” and separated them. Verduzco told officers that he\nhad accidentally fired his gun in his truck, but an officer who looked into Verduzco’s\n 2\n\ftruck did not find any evidence of shots fired. Cepeida does not dispute he did not see\nanyone search his car while he was still on the scene. Although Quezada observed\nofficers looking in her car, she did not feel intimated and did not see them look at any\npart of her vehicle that was not in plain view. One of the responding officers took\nQuezada’s gun. Quezada, Verduzco and Cepeida were separated. Quezada did not tell\nthe responding officers that she believed either Cepeida or Verduzco had fired a gun.\n Detective Daniel Ornellas, who was assigned to the Internal Affairs Group’s\nCriminal Investigations Division, received a call regarding the incident and arrived at the\nscene around 4:25 a.m. to begin processing the evidence. It took approximately four\nhours to process the evidence. As Detective Ornellas believed the officers had used their\nown weapons in the shooting, he needed to search their vehicles to determine whether the\nweapons were inside the vehicles. When Detective Ornellas looked into Verduzco’s\ntruck, he saw a weapon in plain view. He asked plaintiffs if he could search their\nvehicles, but plaintiffs refused to consent.\n 2. Interrogation of Plaintiffs\n Plaintiffs were taken to three locations during their interrogation on June 16, 2010:\nCentral Station, Parker Center, and the Bradbury Building.1 Plaintiffs were released at\n9:00 p.m. that evening. At each location, plaintiffs gave a “public safety statement”2 and\nwere subject to an administrative interrogation.\n\n\n 1The record does not reflect the precise time plaintiffs were transported between\nthese various locations.\n 2 Whenever there is an officer involved shooting, the Department obtains a\nstatement from involved officers and witnesses. This statement is known as a “public\nsafety statement” and the officer has no right to an employee representative or an attorney\nbecause the questions are limited to the number and direction of rounds fired, whether\nother officers fired any rounds, whether a suspect fired rounds at the officers, and if so\nwhat direction the suspect fired, whether anyone was injured and their location, whether\nthere are any witnesses and their location, the location of the officers when they fired\ntheir weapons, whether there are outstanding suspects at the location, and the location of\nany weapons or evidence.\n 3\n\f At Central Station, plaintiffs were separated and were appointed an employee\nrepresentative. Later, plaintiffs were taken from Central Station to Parker Center for\nphotographs and breathalyzer tests. Finally, plaintiffs’ Internal Affairs administrative\ninterviews were conducted at the Bradbury building.\n Commander Richard Webb, who is the Commanding Officer of the Department’s\nInternal Affairs Group,3 was advised that the public safety statements made by Officers\nCepeida, Verduzco, and Quezada at the scene did not provide any useful information.\nCommander Webb was told that Quezada had unloaded Cepeida’s or Verduzco’s\nweapons, that an officer had an unloaded weapon on his or her person, and that one or\nmore of the weapons involved in the shooting was in one of the plaintiffs’ cars. Either\nVerduzco or Cepeida told a responding supervisor that he accidentally discharged his\nweapon in his vehicle although this was not true. None of the witnesses who called 911\ncould identify which of the plaintiffs was involved in the shooting, the weapons they\nused or where the weapons were located. Commander Webb determined to obtain search\nwarrants of plaintiffs’ vehicles, conduct breathalyzer tests of the officers, photograph\nthem, and to administratively interview them pursuant to the Department’s Internal\nAffairs procedures.\n Plaintiffs also could have been charged criminally with violations of Penal Code\nsections 246.3, 594, subdivision (a), and 647, subdivision (f), as well as potentially false\n\n\n 3 The Professional Standards Bureau oversees the Forces Investigations Division,\nSpecial Operations Division, and the Administrative and Criminal Investigation\nDivisions of Internal Affairs Group. Internal Affairs Group investigates employee\nbehavior that either violates the law or Department policies, procedures or practices.\nInternal Affairs Group is divided into two divisions, the Administrative Investigation\nDivision and the Criminal Investigation Division. The Administrative Investigation\nDivision investigates complaints of misconduct that are primarily administrative, namely\nemployee behavior that violates Department policies, procedures or practices, while the\nCriminal Investigation Division investigates complaints that an employee has violated the\nlaw. If the employee’s misconduct is both administrative and criminal, Internal Affairs\nGroup will conduct a bifurcated investigation with two separate groups of investigators.\n 4\n\fand misleading statements made by plaintiffs regarding the incident. Pursuant to the\nMemorandum of Understanding (MOU) in effect between the Department and the Police\nProtective League,4 when an officer is subject to an administrative or criminal\ninvestigation, any interview of an employee in connection with an investigation that the\nemployee reasonably believes may result in disciplinary action against the employee\nentitles the employee to the representative of the employee’s choice. Sergeant Rachel\nCanchola was provided to plaintiffs as their employee representative.\n The plaintiffs requested attorney Randall Quan to represent them, and Quan was\ncontacted. However, Internal Affairs Group learned, at 8:00 a.m. on June 16, 2010, that\nQuan would not be available until late that evening. Commander Webb thus waited a\nreasonable amount of time, until about 2:30 p.m., to begin interviewing the officers to\ngive them time to find an attorney. According to Randall Quan, at 9:00 a.m. on June 16,\n2010, he was contacted by Sergeant Canchola regarding representing plaintiffs, and was\nadvised all three plaintiffs were sleep deprived and that two of them had consumed\nexcessive amounts of alcohol. Quan advised Canchola that he had previously-scheduled\ninterviews and was not available, and that he would represent plaintiffs if Internal Affairs\nGroup could approve rescheduling of Quan’s currently scheduled appointments. Quan\nstated he would be available at 9:00 p.m. Detective Ornellas informed Quan that\nplaintiffs’ interviews would not be rescheduled, and that Internal Affairs Group would\nnot wait for Quan to be available. In Quan’s belief, Internal Affairs Group often does not\nwant attorneys present during Internal Affairs Group investigations, and often has no\nregard for the physical or mental status of accused officers.\n Detective Ornellas obtained a search warrant at 1:00 p.m. on June 16, 2010, and\nsearched the plaintiffs’ vehicles. In Cepeida’s car, he found two weapons and some\n\n\n\n 4The Police Protective League is the legally recognized collective bargaining unit\nregarding the working conditions and benefits of officers at the rank of lieutenant and\nbelow.\n 5\n\fammunition that was later determined to match the bullet casings and bullets found at the\nscene of the shooting.\n 3. Plaintiffs’ Individual Experiences While Detained\n While being transported around, Quezada admitted that she was not handcuffed at\nany time, nor was she placed in a holding tank while at Central station. She was given an\nopportunity to speak with her husband. At Parker Center, when given breathalyzer\ntesting, she was told that if she did not comply with the breathalyzer, she would be\ncharged with insubordination. Quezada did not understand why she had to take a\nbreathalyzer test if she was not driving and had not been acting drunk, but she\nacknowledged that if the Internal Affairs Group had reasonable cause to believe she was\nintoxicated, they had a right to insist on a breathalyzer test. Quezada was told that her car\nwould be impounded if she did not consent to a search. When she learned that Verduzco\nand Cepeida had requested a search warrant, Quezada did so as well. No other threats\nwere made to her.\n While on a restroom break, Quezada washed her face. She did not have a\ntoothbrush and complained about that, but did not ask if she could get a toothbrush or\nfresh clothes. She recalled at some point that she went to Subway for a sandwich. Every\ntime she asked for a break she was given one. She was denied food and sleep, but other\nthan that, Quezada did not contend she was subjected to unhealthful conditions. She was\nnot threatened with violence.\n Quezada was reassigned to desk duty, and believed her reassignment to desk duty\nwas punishment. Quezada, who maintained she was a witness, not a suspect, did not\nunderstand that if she were only a witness why she was being treated like a suspect,\nalthough she acknowledged there was an allegation of misconduct against her based upon\nher failure to report the other officers’ misconduct. Captain Hanczuk, the commanding\nofficer of the Hollenbeck Division, had the authority to change Quezada’s assignment\nwhile the investigation was pending.\n\n\n 6\n\f Cepeida was not handcuffed when placed in the patrol vehicle. After the incident,\nhe still felt sick, nauseated and dehydrated. Cepeida threw up in the bathroom. He had a\nhangover, but he did not remember asking to see a doctor or requesting medical\ntreatment. He had not slept for many hours. Cepeida did not get food or water, although\nat Central Station he did not ask for any. Although there were vending machines at\nCentral Station with food and water, he did not make an attempt to use them. Nobody\ntold him he could not leave the conference room. At another time, he was offered food\nand water, but he was not hungry.\n Cepeida attempted to make a phone call, but was unable to complete the call.\nWhen he got to Central Station, he was told he would be able to make a call, but nothing\nhappened. At Central Station, the room was cold and dirty, but “Central Station is kind\nof dirty. So it should have been normal.” He did not ask for a change of clothes. He\nadmitted that no one threatened him with violence.\n Cepeida felt coerced into having a breathalyzer test because he knew it was\nadministratively possible for the department to ask for a breathalyzer. He wanted to have\nan attorney present so he did not waive his Miranda5 rights and insisted on having an\nattorney present. Cepeida specifically asked for Randall Quan. Canchola told him he\nwould not be able to eat until his interview was concluded. When he was told Quan was\nnot available that day, he asked for another attorney but was told that Internal Affairs\nGroup would interview him whether or not there was an attorney present. Cepeida did\nnot attempt to find another attorney when he was told Randall Quan was not available,\nand he did not have time to find another attorney because Internal Affairs Group told him\nthey were going to proceed.\n Verduzco did not believe there was anything in plain view in his truck, but he\nbelieved Cepeida’s gun was in his truck. When the police put him in a car, he was not\nhandcuffed. He was not handcuffed at any time at the Bradbury Building.\n\n\n 5 Miranda v. Arizona (1966) 384 U.S. 436 [86 S. Ct. 1602, 16 L. Ed. 2d 694].\n 7\n\f Although he had a headache and was nauseated, Verduzco did not ask for medical\nassistance. He did not use the restroom because he thought he would have to leave the\ndoor open. He did not ask for a change of clothes. It took an hour and a half to get a\nbottle of water when he asked for it. While on the way to the Bradbury Building, he\nasked to stop at a liquor store where he bought an energy drink. He was also able to get a\nsandwich and a drink at Subway. Verduzco was still feeling intoxicated when he had his\nInternal Affairs interview. He did not find the rooms he was in to be cold, nor was he\ndisturbed that he was not allowed to change clothes.\n While at the scene, Detective Ornellas asked for permission to search Verduzco’s\ncar. Detective Ornellas told Verduzco that if they had to get a search warrant, his car\nwould be impounded and Verduzco would have to pay impound fees. This was the only\nthreat made to Verduzco.\n Sergeant Canchola told him she would try to get him an attorney, and Verduzco\nasked for Randy Quan because he had used him before. When Verduzco learned that\nRandall Quan would not be available until seven or eight o’clock that evening, he asked\nCanchola if there was another attorney. Canchola told him she would try to get him one.\nHe does not know whether she called any panel attorneys. Verduzco was advised of his\nMiranda and Lybarger6 rights and warnings. No criminal charges were ever filed against\nVerduzco.\n All plaintiffs admitted that Internal Affairs had the right to take their breathalyzer\ntests.\n\n\n\n\n 6\n Lybarger v. City of Los Angeles (1985) 40 Cal. 3d 822 held that although police\nofficers subject to an administrative inquiry into possible criminal misconduct must be\nadvised of their Miranda rights, they also must be advised that silence during such an\ninquiry “could be deemed insubordination, leading to administrative discipline,” and any\nstatement made under the compulsion of a threat of discipline could not be used in a\ncriminal proceeding. (Lybarger, at p. 829.)\n 8\n\f 4. No Interviews Regarding Criminal Conduct\n Detective Ornellas, who was conducting the criminal investigation into plaintiffs’\nconduct, did not interview plaintiffs concerning a possible criminal investigation because\nplaintiffs had refused to waive their Miranda rights.\n B. Procedural History\n 1. Plaintiffs’ Complaint\n Plaintiffs’ complaint filed June 30, 2011 stated claims for violations of the Bane\nAct (Civ. Code, § 52.1), violations of POBRA (Gov. Code, § 3300 et seq.) and violations\nof Title 42 United States Code section 1983. Plaintiffs dismissed their federal civil rights\nclaims under Title 42 United States Code section 1983.\n 2. Defendants’ Motion for Summary Judgment\n On July 27, 2012, defendants moved for summary judgment, or in the alternative,\nsummary adjudication, arguing that no POBRA violations occurred because plaintiffs\nwere ordered on duty, given overtime pay, allowed to eat, drink, use the restroom as\nneed, and make phone calls. The police department read plaintiffs their Miranda rights;\nplaintiffs had an employee representative with them at all phases of the investigation; and\nthe department is permitted to change an officer’s duties while an investigation is\nongoing. The seriousness of the incident, which involved charges of criminal and\nadministrative misconduct, required the police department to conduct the investigation\nimmediately. It took police four hours to process the crime scene. Further, the police\ndepartment did not violate the Bane Act because plaintiffs were not threatened with\nviolence, the searches of plaintiffs’ vehicles were not unlawful, and plaintiffs’ right to an\nattorney was not violated because plaintiffs refused to waive their Miranda rights and\nPOBRA does not guarantee an officer an attorney in an administrative investigation.\n Plaintiffs opposed, arguing that the undisputed facts established they had gone 30\nhours without sleep when their interviews were conducted; they were given little food or\nwater; the 911 calls established that Quezada was not involved in the shooting and was\nnot intoxicated; plaintiffs did not consent to the searches of their vehicles; they were\n 9\n\fintimidated by the search warrants; and their chosen counsel, Randall Quan, was not\navailable. They argue these undisputed facts add up to a violation of their POBRA rights\nand the Bane Act and summary judgment was improper. Plaintiffs submitted the\nDeclaration of Roy Artal, M.D. in which he stated that sleep deprivation results in\nsignificant changes in cognitive functioning, headaches, and detrimental effects on\nmental and physical health. Given that the plaintiffs had been deprived of sleep for 30\nhours, in Dr. Artal’s opinion this would have affected their ability to accurately recall and\nrelate the events of June 16, 2010. Four hours after the incident, Cepeida had a blood\nalcohol level of .12 to .13 and Verduzco had a blood alcohol level of .09 to .10.\n The trial court granted defendants’ summary judgment motion and entered\njudgment for the City and Chief Beck. At the hearing, the court stated that it found\nplaintiffs’ evidence in opposition to the motion to be “irrelevant, off the point, [and]\nnonresponsive.” The court stated, “[I]t’s very misleading to describe this as a situation\nwhere the plaintiffs were kept up for 30 hours when, in fact, what happened was they did\ntheir regular work shift, were spry enough to go out drinking, and then after this incident\nhappened, were kept, appropriately in my view, separated subject to an investigation.” In\nconclusion the court found that “to the extent [it] could even find any facts to support\n[plaintiffs’] arguments, [it] didn’t find them to be persuasive or sufficient to create a\nmaterial issue of fact.”\n DISCUSSION\nI. Standard of Review\n “[T]he party moving for summary judgment bears the burden of persuasion that\nthere is no triable issue of material fact and that he is entitled to judgment as a matter of\nlaw.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.) “Once the\n[movant] has met that burden, the burden shifts to the [other party] to show that a triable\nissue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., §\n437c, subd. (p)(1); Aguilar, at p. 850.) A triable issue of material fact exists where “the\nevidence would allow a reasonable trier of fact to find the underlying fact in favor of the\n 10\n\fparty opposing the motion in accordance with the applicable standard of proof.”\n(Aguilar, at p. 850.) Where summary judgment has been granted, we review the trial\ncourt’s decision de novo, “considering all of the evidence the parties offered in\nconnection with the motion (except that which the trial court properly excluded) and the\nuncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc.\n(2001) 26 Cal. 4th 465, 476.)\nII. Pobra Claims\n POBRA explicitly declares that its purpose is to promote “effective law\nenforcement” by maintaining “stable employer-employee relations” in law enforcement\nagencies. (Gov. Code, § 3301) POBRA, initially enacted in 1976 (Stats. 1976, ch. 465,\n§ 1, p. 1202), sets forth a list of “basic rights and protections which must be afforded all\npeace officers by the public entities which employ them,” and is a catalog of “the\nminimum rights (Gov. Code, § 3310) the Legislature deems necessary to secure stable\nemployer-employee relations.” (Baggett v. Gates (1982) 32 Cal. 3d 128, 135.) “The\nvarious procedural protections provided by POBRA ‘balance the public interest in\nmaintaining the efficiency and integrity of the police force with the police officer’s\ninterest in receiving fair treatment.’ [Citation.]” (Mays v. City of Los Angeles (2008) 43\nCal. 4th 313, 320.) These rights include limits on and guidelines for investigations and\ninterrogations of public safety officers in connection with disciplinary proceedings (Gov.\nCode, § 3303), the right to an administrative appeal and a one-year statute of limitations\nfor investigations (Gov. Code, § 3304), the right to notification of adverse comments\nplaced in his or her personnel file and the right to comment thereon (Gov. Code,\n§§ 3305–3306), the right to inspection of personnel files (§ 3306.5), the right to refuse to\nsubmit to a lie detector test (Gov. Code, § 3307), and the right to the protections of\nPOBRA (Gov. Code, § 3309.5, subd. (a)).\n A. Reasonable Time for Interrogation\n Plaintiffs contend their interrogation sessions violated their POBRA rights because\nthe interviews were conducted after they had been awake for a long time, Verduzco and\n 11\n\fCepeida were intoxicated and/or hung over, and there were no exigent circumstances,\nwhich was in violation of POBRA’s directive that “[t]he interrogation be conducted at a\nreasonable hour” and “at a time when the public safety officer is on duty, or during\nnormal waking hours” unless the “seriousness of the investigation requires otherwise.”\n(Gov. Code, § 3303, subd. (a).)\n Under Government Code section 3303, subdivision (a) the interrogation must “be\nconducted at a reasonable hour, preferably at a time when the public safety officer is on\nduty, or during the normal waking hours for the public safety officer, unless the\nseriousness of the investigation requires otherwise.” This section does not require that\nthe interrogation be conducted at the convenience of the officer or the officer’s chosen\nrepresentative. Rather, POBRA permits that “the seriousness of the investigation may\nallow interrogation at an unreasonable off-duty time.” (Upland Police Officers Assn. v.\nCity of Upland (2003) 111 Cal. App. 4th 1294, 1303 (Upland Police Officers Assn.).)\n Under Upland Police Officers Assn., supra, 111 Cal. App. 4th 1294, plaintiffs were\nnot entitled to wait for Quan to become available. The seriousness of the circumstances\nprompting the investigation—the drunken random firing of shots by off-duty officers—\nmandated that Internal Affairs conduct its investigation at the earliest opportunity while\nplaintiffs’ memories (although hampered by excessive alcohol consumption) were\nfreshest. The fact that plaintiffs had been awake for many hours before being\ninterrogated was the result of the incident occurring after they had been on duty for many\nhours, and was not the result of the Department’s unreasonable actions.\n B. Physical and Mental Conditions of Interrogations\n Plaintiffs also contend that during their interrogations they were subjected to\nphysical and mental hardships during the investigation, including having to watch their\npersonal vehicles being searched without their consent; were housed in uncomfortable\nrooms that were too cold or too hot during interrogations; were denied their right to eat\nwhen they needed to and were limited in the amount of water they had access to; were\n\n\n 12\n\fnot allowed to obtain a change of clothing or take a shower; and were restricted in their\nuse of toilet facilities.\n Government Code section 3303, subdivision (d) provides that “[t]he interrogating\nsession shall be for a reasonable period taking into consideration gravity and complexity\nof the issue being investigated. The person under interrogation shall be allowed to attend\nto his or her own personal physical necessities.” The record here indicates that although\nduring the interrogation process from 2:30 a.m. to 9:00 p.m. at times the plaintiffs were\ndenied access to food or water, the deprivation was not unreasonable given that plaintiffs\ndid have access to food, water and restrooms during the interrogation process. Plaintiffs\ndid not ask for medical attention. Finally, plaintiffs have offered no evidence that they\nsuffered any adverse mental or physical health consequences as a result of the\ninterrogations.\n C. Provision of Public Safety Statements\n Plaintiffs contend they were forced to provide public safety statements on at least\nthree occasions while detained over an extended period of time, and the purpose of such\ninterrogations was not to obtain information by an actual need to protect public safety,\nbut for the purpose of improperly eliciting incriminating information from them. In\nparticular, the last of the public safety statements was elicited 12 hours after the police\nhad finished their on-scene investigation and after plaintiffs had requested numerous\ntimes to have Randall Quan present to represent them and at a time when there were no\nexigent circumstances compelling further interrogation.\n As discussed above, the seriousness of the circumstances mandated that the\ninvestigating officers conduct their inquiry with haste. Further, the public safety\nstatements plaintiffs gave at the scene were insufficient, and two of the plaintiffs were\nphysically impaired due to their self-inflicted excessive alcohol consumption. Finally,\nother than the firing of the weapon and Quezada’s failure to accurately report her\nknowledge of the incident, plaintiffs point to no incriminating evidence elicited from\nthem during the day-long interrogations.\n 13\n\f D. Right to Counsel\n Plaintiffs contend that because they were subject to both an administrative and a\ncriminal investigation, under Miranda and POBRA, they had a right to have counsel\npresent during interrogations. During the early morning detention of June 16, 2010,\nSergeant Rachel Canchola represented them as their employee representative, but\nrepresentatives like Sergeant Canchola are not trained in criminal law matters and do not\nhave a communication privilege with officers under investigation. Although attorney\nRandall Quan was contacted to represent plaintiffs, due to scheduling conflicts he was\nnot immediately available and was told that no accommodation would be made for his\nabsence and that plaintiffs’ interviews would proceed without legal counsel.\n Government Code section 3303, subdivision (i) provides: “Upon the filing of a\nformal written statement of charges, or whenever an interrogation focuses on matters that\nare likely to result in punitive action against any public safety officer, that officer, at his\nor her request, shall have the right to be represented by a representative of his or her\nchoice who may be present at all times during the interrogation. The representative shall\nnot be a person subject to the same investigation. The representative shall not be\nrequired to disclose, nor be subject to any punitive action for refusing to disclose, any\ninformation received from the officer under investigation for noncriminal matters.”\n However, an officer’s right to be represented by the person of his or her choice is\nnot unlimited. “The officer must choose a representative who is reasonably available to\nrepresent the officer, and who is physically able to represent the officer at the reasonably\nscheduled interrogation. But it is the officer’s responsibility to secure the attendance of\nhis or her chosen representative at the interrogation. If he or she is unable to do so, the\nofficer should select another representative so that the interrogation may proceed ‘at a\nreasonable hour.’ ([Gov. Code,] § 3303, subd. (a).)” (Upland Police Officers Assn.,\nsupra, 111 Cal.App.4th at p. 1306.) The chosen representative during administrative\nhearings need not be an attorney. (Id. at p. 1306, fn. 7.)\n\n\n 14\n\f Here, as discussed above, under Upland Police Officers Assn., supra, 111\nCal. App. 4th 1294, plaintiffs were not entitled to wait for Quan to become available. The\nseriousness of the circumstances prompting the investigation mandated that Internal\nAffairs conduct its investigation at the earliest opportunity while plaintiffs’ memories\nwere freshest. Further, even when confronted with Quan’s unavailability, the record\ndiscloses that plaintiffs made little or no effort to obtain alternative counsel to represent\nthem so that the interrogations could proceed.\nIII. Search of Plaintiff’s Vehicles\n Plaintiffs contend that when Sergeant Hicks searched Verduzco’s personal\nvehicle, he lacked consent or a search warrant but ostensibly relied on Verduzco’s\nstatement that a weapon was in plain view that might have been used in the incident, yet\nVerduzco denied making this statement, creating a triable issue of fact.\n Under the Fourth Amendment, the law is clear that any incriminating evidence\nobserved in plain view may be seized. (See Coolidge v. New Hampshire (1971) 403 U.S.\n443, 465 [91 S. Ct. 2022, 29 L. Ed. 2d 564]; see also Horton v. California (1990) 496 U.S.\n128, 137 [110 S. Ct. 2301, 110 L. Ed. 2d 112].) The United States Supreme Court has said,\n“The plain-view doctrine authorizes seizure of illegal or evidentiary items visible to a\npolice officer whose access to the object has some prior Fourth Amendment justification\nand who has probable cause to suspect that the item is connected with criminal activity.\n[Citation.] The plain-view doctrine is grounded on the proposition that once police are\nlawfully in a position to observe an item first-hand, its owner’s privacy interest in that\nitem is lost; the owner may retain the incidents of title and possession but not privacy.”\n(Illinois v. Andreas (1983) 463 U.S. 765, 771 [103 S. Ct. 3319, 77 L. Ed. 2d 1003].)\n Here, before the procurement of search warrants (the validity of which the\nplaintiffs do not contest), the investigating officers did not act improperly with respect to\nplaintiffs’ vehicles. The gun in Verduzco’s car was undisputedly in Detective Ornellas’s\nplain view. Quezada saw police look in her car, but admitted they did not look at any\npart of her car that was not in plain view. Finally, Cepeida admitted that he did not see\n 15\n\fthe investigating police look in his car. Indeed, evidence from Cepeida’s car was not\nrecovered until the search warrants had been obtained. Thus, plaintiffs’ Fourth\nAmendment rights were not violated.\nIV. Bane Act\n Plaintiffs contend the trial court erred in reading a requirement of “threats of\nviolence or actual violence” into Civil Code section 52.1 because the Bane Act only\nrequires threats, intimidation or coercion; further, because they were subjected to\ncoercion in their interrogations, triable issues of fact exist on their Bane Act claims.\n In 1987 the Legislature enacted a measure entitled the Tom Bane Civil Rights Act.\n(Stats. 1987, ch. 1277, § 1, p. 4544.) One of its provisions, codified as Civil Code\nsection 52.1, authorizes a private cause of action for damages and equitable relief against\nany person who, “whether or not acting under color of law, interferes by threats,\nintimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion,\nwith the exercise or enjoyment by any individual or individuals of rights secured by the\nConstitution or laws of the United States, or of the rights secured by the Constitution or\nlaws of this state . . . .” (Civ. Code, § 52.1, subd. (a).) “Speech alone is not sufficient to\nsupport an action . . . except upon a showing that the speech itself threatens violence\nagainst a specific person or group of persons” who have a reasonable fear of violence\nbecause “the person threatening violence had the apparent ability to carry out the threat.”\n(Id., subd. (j).)\n However, the statutory language does not limit its application to hate crimes.\nNotably, the statute does not require a plaintiff to allege the defendant acted with\ndiscriminatory animus or intent based upon the plaintiff’s membership in a protected\nclass of persons. (Venegas v. County of Los Angeles (2004) 32 Cal. 4th 820, 841–843.) A\ndefendant is liable if he or she interfered with or attempted to interfere with the plaintiff’s\nconstitutional rights by the requisite threats, intimidation, or coercion. (Id. at p. 843.)\nThe coercion inherent in detention is insufficient to show a Bane Act violation. (Shoyoye\nv. County of Los Angeles (2012) 203 Cal. App. 4th 947, 959–960.)\n 16\n\f Here, plaintiffs’ Bane Act violations are premised upon alleged violations of\nPOBRA and the allegedly unlawful search of their vehicles. As discussed above,\nplaintiffs have failed to establish their interrogations violated their rights under POBRA\nor that the officers lacked probable cause. Further, plaintiffs have failed to show that\nthere were any undue threats or coercion. Plaintiffs’ evidence on this point establishes\nthat at most they felt compelled to submit to a breathalyzer test or suffer adverse\nemployment consequences, and Verduzco was told his car could be impounded if he did\nnot consent to a search. This compulsion does not rise to the level of a Bane Act\nviolation for the simple reason that a police officer’s continued employment can be\npremised on submission to a breathalyzer test and cars subject to search warrants may be\nlawfully impounded. (People v. Williams (2006) 145 Cal. App. 4th 756, 761.) “As part of\ntheir ‘“community caretaking functions,”’ police officers may constitutionally impound\nvehicles that ‘jeopardize . . . public safety and the efficient movement of vehicular\ntraffic.’ [Citation.] Whether ‘impoundment is warranted under this community\ncaretaking doctrine depends on the location of the vehicle and the police officers’ duty to\nprevent it from creating a hazard to other drivers or being a target for vandalism or theft.’\n[Citation.]” (Ibid.)\nV. Quezada Was Not Merely a Witness\n Plaintiffs contend that Quezada was not involved in the incident and merely was a\npotential witness: eyewitnesses identified only two male suspects; surveillance video did\nnot show Quezada at the scene—yet Quezada was treated as if she had participated in the\nmelee.\n Government Code section 3303, subdivision (j) provides that, “No public safety\nofficer shall be loaned or temporarily reassigned to a location or duty assignment if a\nsworn member of his or her department would not normally be sent to that location or\nwould not normally be given that duty assignment under similar circumstances.”\nHowever, Quezada was not merely a witness because Quezada was not completely\nforthcoming with the investigating officers at the scene—she failed to tell them she\n 17\n\fbelieved either Verduzco or Cepeida had fired his weapon. Thus, Captain Hanczuk was\nwell within his authority to change her assignment while the investigation was pending.\n DISPOSITION\n The judgment is affirmed. The parties are to bear their own costs on appeal.\n CERTIFIED FOR PUBLICATION.\n\n\n JOHNSON, J.\n\n\nWe concur:\n\n\n ROTHSCHILD, Acting P. J.\n\n\n CHANEY, J.\n\n\n\n\n 18\n\f", "ocr": false, "opinion_id": 2651444 } ]
California Court of Appeal
California Court of Appeal
SA
California, CA
703,288
null
1995-07-31
false
britamco-underwriters-inc-v-george-giouzelis-inc-t
null
Britamco Underwriters, Inc. v. George Giouzelis, Inc., T/a Corfu Pizza, Inc., Oliva Austin, Guardian of Rasheed C. Austin
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "65 F.3d 161" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/65/65.F3d.161.94-2187.html", "author_id": null, "opinion_text": "65 F.3d 161\n Britamco Underwriters, Inc.v.George Giouzelis, Inc., t/a Corfu Pizza, Inc., Oliva Austin,Guardian of Rasheed C. Austin\n NO. 94-2187\n United States Court of Appeals,Third Circuit.\n July 31, 1995\n Appeal From: E.D.Pa., No. 93-cv-04547\n \n 1\n AFFIRMED.\n \n ", "ocr": false, "opinion_id": 703288 } ]
Third Circuit
Court of Appeals for the Third Circuit
F
USA, Federal
2,647,465
Alex, Fisher, Kozinski, Paul, Raymond, Watford
2013-12-24
false
united-states-v-wei-lin
null
United States v. Wei Lin
UNITED STATES of America, Plaintiff-Appellee, v. WEI LIN, Defendant-Appellant
Mark B. Hanson, Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant., Stephen F. Leon Guerrero (argued), Assistant United States Attorney, and Alicia A.G. Limtiaco, United States Attorney, United States Attorney’s Office, Hagatna, Guam, for Plaintiff-Appellee.
Criminal
null
null
null
null
null
null
Argued and Submitted Oct. 10, 2013.
null
null
0
Published
null
<parties id="b1126-6"> UNITED STATES of America, Plaintiff-Appellee, v. WEI LIN, Defendant-Appellant. </parties><br><docketnumber id="b1126-8"> No. 11-10576. </docketnumber><br><court id="b1126-9"> United States Court of Appeals, Ninth Circuit. </court><br><otherdate id="b1126-10"> Argued and Submitted Oct. 10, 2013. </otherdate><decisiondate id="Atu"> Filed Dec. 24, 2013. </decisiondate><br><attorneys id="b1126-23"> Mark B. Hanson, Saipan, Commonwealth of the Northern Mariana Islands, for Defendant-Appellant. </attorneys><br><attorneys id="b1126-24"> Stephen F. Leon Guerrero (argued), Assistant United States Attorney, and Alicia A.G. Limtiaco, United States Attorney, <span citation-index="1" class="star-pagination" label="1083"> *1083 </span> United States Attorney’s Office, Hagatna, Guam, for Plaintiff-Appellee. </attorneys><br><judges id="b1127-6"> Before: ALEX KOZINSKI, Chief Judge, and RAYMOND C. FISHER and PAUL J. WATFORD, Circuit Judges. </judges>
[ "738 F.3d 1082" ]
[ { "author_str": "Watford", "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://cdn.ca9.uscourts.gov/datastore/opinions/2013/12/24/11-10576.pdf", "author_id": null, "opinion_text": " FOR PUBLICATION\n\n UNITED STATES COURT OF APPEALS\n FOR THE NINTH CIRCUIT\n\n\nUNITED STATES OF AMERICA, No. 11-10576\n Plaintiff-Appellee,\n D.C. No.\n v. 1:11-cr-00008-\n RVM-1\nWEI LIN,\n Defendant-Appellant.\n OPINION\n\n\n Appeal from the United States District Court\n for the District of the Northern Mariana Islands\n Ramona V. Manglona, Chief District Judge, Presiding\n\n Argued and Submitted\n October 10, 2013—Honolulu, Hawaii\n\n Filed December 24, 2013\n\n Before: Alex Kozinski, Chief Judge, and Raymond C.\n Fisher and Paul J. Watford, Circuit Judges.\n\n Opinion by Judge Watford\n\f2 UNITED STATES V. LIN\n\n SUMMARY*\n\n\n Criminal Law\n\n The panel reversed the defendant’s convictions under 18\nU.S.C. § 1546(a) (fraud and misuse of visas, permits, and\nother documents), affirmed his convictions under 18 U.S.C.\n§ 1001(a)(2) (false statement to a federal agent), and\nremanded for further proceedings.\n\n The panel held that § 1546(a) cannot be read to\ncriminalize the mere possession of an unlawfully obtained\nCommonwealth of Northern Mariana Islands driver’s license,\nand that because the government presented no evidence that\nthe defendant possessed any other document covered by the\nstatute, his § 1546(a) convictions cannot stand.\n\n The panel held that there was sufficient evidence to\nsupport the § 1001(a)(2) conviction.\n\n\n COUNSEL\n\nMark B. Hanson, Saipan, Commonwealth of the Northern\nMariana Islands, for Defendant-Appellant.\n\nStephen F. Leon Guerrero (argued), Assistant United States\nAttorney, and Alicia A.G. Limtiaco, United States Attorney,\nUnited States Attorney’s Office, Hagåtña, Guam, for\nPlaintiff-Appellee.\n\n *\n This summary constitutes no part of the opinion of the court. It has\nbeen prepared by court staff for the convenience of the reader.\n\f UNITED STATES V. LIN 3\n\n OPINION\n\nWATFORD, Circuit Judge:\n\n Wei Lin, a Chinese national, unlawfully obtained two\ndriver’s licenses issued by the Commonwealth of the\nNorthern Mariana Islands (CNMI). The main issue on appeal\nis whether Lin’s possession of those licenses may be\npunished under 18 U.S.C. § 1546(a).\n\n I\n\n Section 1546, titled “Fraud and misuse of visas, permits,\nand other documents,” criminalizes a diverse range of\nconduct, most of it tied to immigration-related documents.\nAs relevant to the charges brought against Lin, the statute\nrequired the government to prove that he (1) possessed one of\nthe documents specified in the statute and (2) knew the\ndocument had been obtained unlawfully or fraudulently.1\n\n\n 1\n The first paragraph of 18 U.S.C. § 1546(a), under which Lin was\ncharged, provides:\n\n Whoever knowingly forges, counterfeits, alters, or\n falsely makes any immigrant or non-immigrant visa,\n permit, border crossing card, alien registration receipt\n card, or other document prescribed by statute or\n regulation for entry into or as evidence of authorized\n stay or employment in the United States, or utters, uses,\n attempts to use, possesses, obtains, accepts, or receives\n any such visa, permit, border crossing card, alien\n registration receipt card, or other document prescribed\n by statute or regulation for entry into or as evidence of\n authorized stay or employment in the United States,\n knowing it to be forged, counterfeited, altered, or\n falsely made, or to have been procured by means of any\n\f4 UNITED STATES V. LIN\n\n At trial, Lin did not contest the second element. Lin\nunlawfully obtained two authentic CNMI driver’s licenses\nissued in his own name. He knew the first license had been\nobtained unlawfully because he paid a bribe to get it. After\na police officer confiscated that license during a traffic stop,\nLin obtained a duplicate license. Lin knew the duplicate had\nbeen obtained unlawfully because to get it, he submitted an\naffidavit to the CNMI Bureau of Motor Vehicles falsely\nstating that he had lost the original license at the beach.\n\n Lin did contest the first element of the offense: He\nargued that a CNMI driver’s license is not one of the\ndocuments specified in § 1546(a). Those documents consist\nof the following: “any immigrant or non-immigrant visa,\npermit, border crossing card, alien registration receipt card,\nor other document prescribed by statute or regulation for\nentry into or as evidence of authorized stay or employment in\nthe United States.” 18 U.S.C. § 1546(a) (emphasis added);\nsee United States v. Krstic, 558 F.3d 1010, 1015–16 (9th Cir.\n2009).\n\n The government contends a driver’s license is covered by\nthe italicized “other document” clause, but it plainly is not.\nThe government has not identified any federal statute or\nregulation that prescribes a driver’s license as one of the\ndocuments authorizing entry into the United States. See\n8 U.S.C. §§ 1181(a), 1182(a)(7); 8 C.F.R. §§ 211.1(a), 212.1,\n212.6. Nor has the government identified any federal statute\nor regulation designating a driver’s license as evidence of\nauthorization to stay or work in the United States. The\n\n\n false claim or statement, or to have been otherwise\n procured by fraud or unlawfully obtained [commits an\n offense under this section].\n\f UNITED STATES V. LIN 5\n\ngovernment merely notes that a driver’s license is one of the\ndocuments employers may use to help verify the employment\nauthorization status of prospective employees, as mandated\nby the Immigration Reform and Control Act of 1986 (IRCA).\nSee 8 U.S.C. § 1324a(b)(1); 8 C.F.R. § 274a.2(b)(1)(v). But\nboth IRCA and its implementing regulation make clear that\na driver’s license may be used to establish only a prospective\nemployee’s identity. To establish “employment\nauthorization,” the relevant status for purposes of § 1546(a),\nan employee must present a separate document, such as a\npassport, resident alien card, or social security card. 8 U.S.C.\n§ 1324a(b)(1); 8 C.F.R. § 274a.2(b)(1)(v).\n\n The government’s reading of § 1546(a) would render\nmuch of § 1546(b) superfluous, a result we should seek to\navoid. See, e.g., Corley v. United States, 556 U.S. 303, 314\n(2009). According to the government, § 1546(a)’s “other\ndocument” clause covers all identification documents because\nthey can be used to verify a prospective employee’s identity\nas part of the IRCA-mandated verification process. But\nCongress separately addressed that process in § 1546(b).\nSection 1546(b) prohibits the use during the verification\nprocess of an “identification document” that the defendant\nknows or has reason to know “was not issued lawfully for the\nuse of the possessor” or “is false.” 18 U.S.C. § 1546(b).\nBecause § 1546(a) already prohibits both the possession and\nuse of the documents it covers, the government’s reading of\n§ 1546(a) would leave no work to be done by § 1546(b).\n\n For these reasons, § 1546(a) cannot be read to criminalize\nthe mere possession of an unlawfully obtained CNMI driver’s\nlicense. Because the government presented no evidence that\nLin possessed any other document covered by the statute,\nLin’s § 1546(a) convictions cannot stand. We are not\n\f6 UNITED STATES V. LIN\n\npersuaded that Lin “waived” his right to bring this challenge,\nas the government contends. Lin moved post-trial for a\njudgment of acquittal under Federal Rule of Criminal\nProcedure 29, asserting the same evidentiary deficiency\nwe’ve discussed. Even if we viewed Lin’s challenge as a\npurely legal one—asserting that the indictment fails to state\nan offense—such a challenge may be raised for the first time\non appeal, since “a judgment founded upon a complaint\nwhich does not state a crime cannot be sustained.” Johnson\nv. United States, 206 F.2d 806, 808 (9th Cir. 1953); see also\nFed. R. Crim. P. 12(b)(3)(B); United States v. Lo, 231 F.3d\n471, 481 (9th Cir. 2000).\n\n II\n\n The remaining question is whether Lin’s other\nconviction—for making a false statement to a federal agent\nin violation of 18 U.S.C. § 1001(a)(2)—may stand. Lin\ncontends the government introduced insufficient evidence to\nsustain this conviction as well.\n\n Viewing the evidence in the light most favorable to the\ngovernment, a rational jury could find Lin guilty beyond a\nreasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319\n(1979). The government’s proof at trial established the\nfollowing. A federal immigration agent approached Lin in a\nparking lot and asked him, through a translator, whether he\nhad any “identification documents.” Lin said he did not.\nWhen the agent asked Lin about the folded papers visible in\none of his pockets, Lin produced a photocopy of the duplicate\nCNMI driver’s license. The agent again asked Lin whether\nhe had any “identification documents,” and Lin again said he\ndid not, this time adding that his driver’s license had been\nconfiscated. The agent thereafter took Lin to the local field\n\f UNITED STATES V. LIN 7\n\noffice, where another agent inventoried Lin’s possessions,\nincluding his wallet. Inside the wallet, the agent found the\nduplicate CNMI driver’s license.\n\n Lin attacks the sufficiency of the government’s evidence\non two fronts. First, he contends there was insufficient proof\nthat he actually had the license on his person when he\nanswered the agent’s questions. But a rational jury could\ninfer from the sequence of events that Lin had his\nwallet—and thus the license—on his person. The jury may\nnot have been compelled to draw that inference, but it could\nreasonably have done so based on the evidence presented at\ntrial. That remains true even if we were to consider the police\nreport Lin has submitted on appeal, which states that the\nagents drove Lin from the parking lot to his residence before\ntaking him to the field office. Despite having the police\nreport at the time of trial, Lin never argued to the jury that he\npicked up his wallet at home on the way to the field office.\nThe report is therefore irrelevant to our analysis, and we deny\nLin’s request to take judicial notice of it.2\n\n Second, Lin argues that the agent’s questions regarding\n“identification documents” were vague and may have been\nincorrectly translated, leading Lin to misunderstand what the\nagent was asking. A rational jury could conclude that Lin\nknew what the agent meant by “identification documents.”\nWhen asked a second time whether he had any such\n\n\n 2\n We also reject Lin’s contention that the prosecutor committed\nmisconduct during closing arguments by arguing that Lin had the wallet\non his person when he answered the agent’s questions. Prosecutors are\npermitted to “argue reasonable inferences based on the evidence,” United\nStates v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993), which is all the\nprosecutor did here.\n\f8 UNITED STATES V. LIN\n\ndocuments—after producing a photocopy of the duplicate\nCNMI driver’s license—Lin stated that he didn’t have a\ndriver’s license because it had been confiscated by an\nimmigration officer. Based on that answer, a rational jury\ncould infer that Lin knew what type of “identification\ndocuments” the agent’s questions referred to, and that Lin\nknowingly and willfully lied when he told the agent he had\nnone.\n\n * * *\n\n We reverse Lin’s convictions under 18 U.S.C. § 1546(a),\naffirm his conviction under 18 U.S.C. § 1001(a)(2), and\nremand the case to the district court for further proceedings.\n\n AFFIRMED in part, REVERSED in part, and\nREMANDED.\n\f", "ocr": false, "opinion_id": 2647465 } ]
Ninth Circuit
Court of Appeals for the Ninth Circuit
F
USA, Federal
2,703,952
Blackmon
2011-12-29
false
state-v-wilson
Wilson
State v. Wilson
null
null
null
null
null
null
null
null
null
null
null
null
4
Published
null
null
[ "2011 Ohio 6886" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 13, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-6886.pdf", "author_id": 8051, "opinion_text": "[Cite as State v. Wilson, 2011-Ohio-6886.]\n\n\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n\n JOURNAL ENTRY AND OPINION\n No. 96627\n\n\n\n STATE OF OHIO\n PLAINTIFF-APPELLEE\n\n vs.\n\n DEONTE WILSON\n DEFENDANT-APPELLANT\n\n\n\n\n JUDGMENT:\n AFFIRMED\n\n\n Criminal Appeal from the\n Cuyahoga County Court of Common Pleas\n Case Nos. CR-543141 and CR-543159\n\n BEFORE: Blackmon, P.J., Celebrezze, J., and Rocco, J.\n\f 2\n RELEASED AND JOURNALIZED: December 29, 2011\n\n\n\nATTORNEY FOR APPELLANT\n\nThomas A. Rein\n526 Superior Avenue, East\nLeader Building, Suite 940\nCleveland, Ohio 44114\n\nATTORNEYS FOR APPELLEE\n\nWilliam D. Mason\nCuyahoga County Prosecutor\n\nNorman Schroth\nKristin M. Karkutt\nAssistant County Prosecutors\nThe Justice Center, 9th Floor\n1200 Ontario Street\nCleveland, Ohio 44113\n\n\n\n\nPATRICIA ANN BLACKMON, P.J.:\n\n {¶ 1} Appellant Deonte Wilson appeals his convictions and assigns the following\n\nerrors for our review:\n\n “I. The trial court erred in denying appellant’s motion for acquittal as to the\n charges when the state failed to present sufficient evidence to sustain a\n conviction.”\n\n “II. Appellant’s convictions were against the manifest weight of the\n evidence.”\n\f 3\n {¶ 2} Having reviewed the record and pertinent law, we affirm Wilson’s\n\nconvictions. The apposite facts follow.\n\n {¶ 3} On October 21, 2010, a Cuyahoga County Grand Jury indicted Wilson in\n\nCase No. CR-543159 on one count of domestic violence, with a prior conviction\n\nspecification. Additionally, the grand jury indicted Wilson for carrying a concealed\n\nweapon, having weapons while under disability, aggravated menacing, and obstructing\n\nofficial business. Seven days later, the grand jury indicted Wilson in Case No.\n\nCR-543141 on one count of domestic violence and two counts of endangering children.\n\n {¶ 4} At the arraignment on the two separate cases held October 26, 2010, and\n\nNovember 1, 2010, respectively, Wilson pleaded not guilty to the charges. Several\n\npretrials were subsequently conducted and on January 31, 2011, Wilson filed a motion to\n\nconsolidate both cases, which the trial court granted.\n\n {¶ 5} On March 2, 2011, Wilson waived his right to a jury trial on the charges of\n\nhaving weapons while under disability and aggravated menacing. A jury trial\n\ncommenced the same day on the remaining charges.\n\n Jury Trial\n\n {¶ 6} At trial, the state presented the testimony of Shanika Workman. Wilson is\n\nthe father of Workman’s two children, ages five and one, respectively. On September\n\n17, 2010, Workman and Wilson had an argument and he pushed her against a wall, which\n\ncaused injury to her arm and soreness. Afterwards, Wilson suggested they go for a walk;\n\f 4\nshe agreed because she was scared, so they left the house. As they walked, Wilson\n\ncontinued to scream at her and threatened to rob her.\n\n {¶ 7} They eventually stopped at an enclosed bus stop on East 85th Street and\n\nSuperior Avenue, where Workman placed her purse on the bench; Wilson continued to\n\nscream at her and ask for money. When she picked up her purse, she immediately\n\nnoticed it was heavier; she panicked and ran across the street to a beauty salon where her\n\nsister had once worked. She looked in her purse and discovered a gun. She asked the\n\nsalon manager to call the police. When the police arrived, Workman turned over the gun\n\nto the officers.\n\n {¶ 8} After the incident, she and her children went to live with her sister. On\n\nOctober 11, 2010, Workman took their children to visit Wilson at the home they once\n\nshared. Shortly after they arrived, Wilson called the clerk of courts and discovered that\n\nthere was a warrant for his arrest.\n\n {¶ 9} Upon learning of the warrant, Wilson became enraged and began screaming\n\nat Workman, which prompted her to run down the back stairwell. Wilson followed her,\n\npushed her, caused her to fall and hit her eye on the stairs, which resulted in blackness\n\naround her eye. She placed a call to her sister and requested that she call the police.\n\nThe police arrived shortly thereafter and arrested Wilson.\n\n {¶ 10} Police Officer Orville Taylor testified that on September 17, 2010, he and\n\nother officers responded to a beauty salon on Superior Avenue based on a report that a\n\f 5\nmale was threatening a female with a gun. When he approached the salon, he observed\n\na male walking away from the beauty salon and disappearing around the corner. Officers\n\nBryant and Sheehan pursued Wilson and apprehended him after Wilson fell into a nearby\n\ncreek.\n\n {¶ 11} Officer Mitchell Sheehan verified that he and Officer Bryant pursued\n\nWilson. Officer Sheehan stated that after Wilson fell into the creek, he ordered him to\n\nput his hands up and come out of the creek. Wilson refused to show his hands and\n\nstated: “Shoot me bitches, I have a gun.”\n\n {¶ 12} On October 11, 2010, officers Andrew Gibbs and Brian Crisman responded\n\nto Wilson’s residence because of a report of domestic violence in progress. They arrived\n\nto the sound of screaming and yelling emanating from behind the closed door of the third\n\nfloor unit. Officer Gibbs could hear Wilson repeatedly yelling: “I’m going to fucking\n\nkill you,” which prompted them to break down the door and enter the unit.\n\n {¶ 13} Once inside, they observed Wilson standing in the doorway leading to the\n\nfire escape. Upon seeing the officers, Wilson immediately went out onto the fire\n\nescape, ignored their orders to put his hands up, and then dared them to shoot him.\n\nWilson then jumped to another section of the fire escape, continued to disobey their\n\norders, but eventually complied after they talked with him for a short while. The\n\nchildren were present and witnessed the event.\n\f 6\n {¶ 14} The jury found Wilson guilty of domestic violence with the furthermore\n\nspecification and the counts of endangering children in Case No. CR-543141. In Case\n\nNo. CR-543159, the jury found Wilson not guilty of domestic violence and carrying a\n\nconcealed weapon, but guilty of aggravated menacing. In addition, regarding the counts\n\ntried to the bench, the trial court found Wilson guilty of having weapons while under\n\ndisability and obstructing official business.\n\n {¶ 15} In Case No. CR-543141, the trial court sentenced Wilson to four years in\n\nprison for domestic violence and to time served for child endangering. In Case No.\n\nCR-543159, the trial court sentenced Wilson to four years in prison to be served\n\nconcurrent to Case No. CR-543141. Wilson now appeals.\n\n Motion for Acquittal\n\n {¶ 16} In the first assigned error, Wilson argues the trial court erred when it denied\n\nhis motion for acquittal because there was insufficient evidence to support his\n\nconvictions. We disagree.\n\n {¶ 17} Crim.R. 29 mandates that the trial court issue a judgment of acquittal where\n\nthe state’s evidence is insufficient to sustain a conviction for the offense. Crim.R. 29(A)\n\nand sufficiency of evidence review require the same analysis. State v. Mitchell,\n\nCuyahoga App. No. 95095, 2011-Ohio-1241, citing State v. Tenace, 109 Ohio St.3d 255,\n\n2006-Ohio-2417, 847 N.E.2d 386.\n\f 7\n {¶ 18} In analyzing the sufficiency issue, the reviewing court must view the\n\nevidence “in the light most favorable to the prosecution” and ask whether “any rational\n\ntrier of fact could have found the essential elements of the crime beyond a reasonable\n\ndoubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560;\n\nState v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus;\n\nState v. Carter (1995), 72 Ohio St.3d 545, 651 N.E.2d 965.\n\n {¶ 19} The evidence was sufficient to convict Wilson of the crimes charged.\n\nRegarding domestic violence, R.C. 2919.25 states in pertinent part:\n\n “(A) No person shall knowingly cause or attempt to cause physical harm to\n a family or household member.\n\n “* * *\n\n “(F) As used in this section * * * of the Revised Code:\n\n “(1) ‘Family or household member’ means any of the following:\n\n “(a) Any of the following who is residing or has resided with the offender:\n\n “(I) A spouse, a person living as a spouse, or a former spouse of the\n offender; * * *.”\n\n {¶ 20} In the consolidated trial, the testimony was uncontradicted that Wilson and\n\nWorkman were family or household members as the terms are defined above. The\n\nparties had two children together and resided together when the first incident took place\n\non September 17, 2010, and had resided together when the second incident took place.\n\f 8\nThe testimony at trial established that Wilson knowingly caused physical harm to\n\nWorkman.\n\n {¶ 21} In the first incident, Wilson pushed Workman against a wall, which caused\n\nher to hurt her arm. In the second incident, Wilson pushed Workman down the stairs\n\ncausing her to hit her eye on the stairs. Pictures of Workman’s blackened eye were\n\npresented at trial to corroborate her claim. The foregoing evidence was sufficient to\n\nsupport the domestic violence conviction. As such, the trial court properly denied\n\nWilson’s motion for acquittal.\n\n {¶ 22} Regarding aggravated menacing, R.C. 2903.21 states in pertinent part:\n\n “(A) No person shall knowingly cause another to believe that the offender\n will cause serious physical harm to the person or property of the other\n person, the other person’s unborn, or a member of the other person’s\n immediate family.”\n\n {¶ 23} The testimony at trial established that in the first incident, Wilson was\n\nthreatening Workman in the house and as they walked along the road. Wilson threatened\n\nto rob Workman, who testified she felt scared. When she discovered how heavy her\n\npurse had become and discovered the gun in her purse, she sought refuge in the beauty\n\nsalon. Based on Workman’s testimony, Wilson was the only person who had access to\n\nher purse.\n\n {¶ 24} In the second incident, Officer Gibbs testified that he could hear Wilson\n\nrepeatedly yelling: “I’m going to fucking kill you,” which prompted them to break down\n\nthe door and enter the unit. The foregoing evidence was sufficient to support the\n\f 9\naggravated menacing conviction. As such, the trial court properly denied Wilson’s\n\nmotion for acquittal.\n\n {¶ 25} Regarding child endangering, to R.C. 2919.22 states in pertinent part:\n\n “(A) No person, who is the parent, guardian, custodian, person having\n custody or control, or person in loco parentis of a child under eighteen years\n of age or a mentally or physically handicapped child under twenty-one years\n of age, shall create a substantial risk to the health or safety of the child, by\n violating a duty of care, protection, or support.\n\n * * *”\n\n {¶ 26} As previously noted, Officer Gibbs heard Wilson threatening to kill\n\nWorkman when they reported to the residence. Officer Gibbs could also hear cries and\n\nscreams of the children as he stood outside the door. The foregoing evidence was\n\nsufficient to support the child endangering conviction. As such, the trial court properly\n\ndenied Wilson’s motion for acquittal.\n\n {¶ 27} Regarding having weapons while under disability, R.C. 2923.13 states in\n\npertinent part:\n\n “(A) Unless relieved from disability as provided in section 2923.14 of the\n Revised Code, no person shall knowingly acquire, have, carry, or use any\n firearm or dangerous ordnance, if any of the following apply:\n\n “(2) The person is under indictment for or has been convicted of any felony\n offense of violence or has been adjudicated a delinquent child for the\n commission of an offense that, if committed by an adult, would have been a\n felony offense of violence.”\n\n {¶ 28} We note that it was stipulated that Wilson had two prior convictions for\n\ndomestic violence, thus was not permitted to have a firearm. At trial, the testimony\n\f 10\nestablished that Workman discovered a gun in her purse after she and Wilson argued at\n\nthe bus stop. Workman testified that the gun did not belong to her, that it was not in her\n\npurse prior to them arriving at the bus stop, and that they were alone. Circumstantial\n\nevidence is given the same weight as direct evidence. State v. Anderson, Cuyahoga App.\n\nNo. 92879, 2010-Ohio-1663. Thus, sufficient evidence was presented to support the\n\nlogical conclusion that Wilson was the only person that could have placed the gun in\n\nWorkman’s purse.\n\n {¶ 29} Moreover, at trial, a tape of a recorded telephone conversation between\n\nWilson and Workman was played. Workman testified as follows after the tape was\n\nplayed:\n\n “Q. Did you hear on that tape where he said - - where you heard the defendant\n say, ‘everything is not true’?\n\n “A. Uh-huh, yeah.\n\n “Q. What did he mean by that?\n\n “A. Yes, like to say that nothing happened, say everything is a lie\n\n “* * *\n\n “Q. When he said ‘that was yours,’ did you have an understanding as to what he\n was talking about?\n\n “A. The gun.\n\n “Q. The gun. And when he said ‘that was yours,’ you said ‘I know,’ right?\n\n “A. To make it seem like it was mine, but it’s really not my gun.\n\f 11\n “Q. It wasn’t yours?\n\n “A. No ma’am. I’m scared of guns. I don’t like touching them. I never\n touched a gun a day of my life. I guess he wanted to blame everything on me.”\n\nTr. 301-302.\n\n {¶ 30} The above exchange established that Wilson wanted Workman to testify\n\nthat the gun she discovered in her purse belonged to her, when in fact it belonged to him.\n\nThe state presented sufficient evidence to sustain the conviction. As such, the trial court\n\nproperly denied Wilson’s motion for acquittal.\n\n {¶ 31} Regarding obstructing official business, R.C. 2921.31 states in pertinent\n\npart:\n\n “(A) No person, without privilege to do so and with purpose to prevent,\n obstruct, or delay the performance by a public official of any authorized act\n within the public official’s official capacity, shall do any act that hampers or\n impedes a public official in the performance of the public official’s lawful\n duties.”\n\n {¶ 32} In the incidents forming the basis of the consolidated trial, the evidence\n\nestablished that Wilson fled from the police. In the first incident, Wilson fled and was\n\nfinally apprehended when he fell into a creek. In the second incident, Wilson fled down\n\nthe fire escape and proceeded to jump from one landing to the next. In both incidents,\n\nWilson dared the officers to shoot him, and in the first incident, he stated to the police\n\nthat he had a gun. Fleeing from the police is sufficient to support the instant charge.\n\nSee Warrensville Hts. v. Bobbitt (Aug. 8, 1996), Cuyahoga App. No. 69946. As such,\n\nthe trial court properly denied Wilson’s motion for acquittal.\n\f 12\n {¶ 33} We conclude, the state presented sufficient evidence to support Wilson’s\n\nconvictions. Consequently, the trial court properly denied Wilson’s motion for acquittal;\n\naccordingly, we overrule the first assigned error.\n\n Manifest Weight of Evidence\n\n {¶ 34} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264,\n\nthe Ohio Supreme Court addressed the standard of review for a criminal manifest weight\n\nchallenge, as follows:\n\n “The criminal manifest-weight-of-the-evidence standard was explained in\n State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52, 678 N.E.2d 541. In\n Thompkins, the court distinguished between sufficiency of the evidence and\n manifest weight of the evidence, finding that these concepts differ both\n qualitatively and quantitatively. Id. at 386, 678 N.E.2d 541. The court held\n that sufficiency of the evidence is a test of adequacy as to whether the\n evidence is legally sufficient to support a verdict as a matter of law, but\n weight of the evidence addresses the evidence’s effect of inducing belief.\n Id. at 386-387, 678 N.E.2d 541. In other words, a reviewing court asks\n whose evidence is more persuasive—the state’s or the defendant’s? We\n went on to hold that although there may be sufficient evidence to support a\n judgment, it could nevertheless be against the manifest weight of the\n evidence. Id. at 387, 678 N.E.2d 541. ‘When a court of appeals reverses a\n judgment of a trial court on the basis that the verdict is against the weight of\n the evidence, the appellate court sits as a “thirteenth juror” and disagrees\n with the factfinder’s resolution of the conflicting testimony.’ Id. at 387, 678\n N.E.2d 541, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211,\n 72 L.Ed.2d 652.”\n\n {¶ 35} In this assigned error, Wilson argues the trier of fact lost its way as to the\n\nconvictions. Specifically, Wilson argues the state presented conflicting and inconsistent\n\ntestimonies, lacking in credibility. However, the determination of weight and credibility\n\nof the evidence is for the trier of fact. State v. Chandler, 10th Dist. No. 05AP-415,\n\f 13\n2006-Ohio-2070, citing State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212. The\n\nrationale is that the trier of fact is in the best position to take into account inconsistencies,\n\nalong with the witnesses’ manner and demeanor, and determine whether the witnesses’\n\ntestimonies are credible. State v. Williams, 10th Dist. No. 02AP-35, 2002-Ohio-4503.\n\n {¶ 36} Under Wilson, we sit as the thirteenth juror and determine whether we\n\ndisagree with the trier of fact’s resolution of the conflicting evidence. In this case, the\n\nevidence supports the trier of fact’s guilty verdicts. Accordingly, we overrule the second\n\nassigned error.\n\n Judgment affirmed.\n\n It is ordered that appellee recover of appellant its costs herein taxed.\n\n The court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate be sent to said court to carry this judgment into\n\nexecution. The defendant’s conviction having been affirmed, any bail pending appeal is\n\nterminated. Case remanded to the trial court for execution of sentence.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of\n\nthe Rules of Appellate Procedure.\n\n\n\nPATRICIA ANN BLACKMON, PRESIDING JUDGE\n\nFRANK D. CELEBREZZE, JR., J., and\nKENNETH A. ROCCO, J., CONCUR\n\f", "ocr": false, "opinion_id": 2703952 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
810,063
null
2012-10-15
false
cbt-flint-partners-llc-v-return-path-inc
null
Cbt Flint Partners, LLC v. Return Path, Inc.
null
null
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.cafc.uscourts.gov/images/stories/opinions-orders/2012-1460.10-15-12.1.pdf", "author_id": null, "opinion_text": "Case: 12-1460 Document: 42 Page: 1 Filed: 10/15/2012\n\n\n\n\n NOTE: This order is nonprecedential.\n\n Wnlteb $>tateil qcourt of §ppealil\n for tbe jfeberaI (!CIrcuit\n\n CBT FLINT PARTNERS, LLC,\n Plaintiff-Appellant,\n\n v.\n RETURN PATH, INC.,\n Defendant-Appellee,\n\n AND\n CISCO IRONPORT SYSTEMS, LLC,\n Defendant-Appellee.\n\n\n\n 2012-1460\n\n\n\nAppeal from the United States District Court for the\nNorthern District of Georgia in case no. 07·CV-1822,\nJudge Thomas W. Thrash, Jr.\n\n\n ON MOTION\n\n\n ORDER\n\fCase: 12-1460 Document: 42 Page: 2 Filed: 10/15/2012\n\n\n\n\nCBT FLINT PARTNERS, LLC v. RETURN PATH, INC. 2\n CBT Flint Partners, LLC moves to clarify the briefing\nschedule and modify the time for filing of its reply brief.\n\n The court notes that on October 11, 2012, cross-appeal\n2012-1594 was dismissed.\n\n Upon consideration thereof,\n\n IT Is ORDERED THAT:\n\n The motion is granted to the extent that CBT's reply\nbrief is due on October 29, 2012.\n\n FOR THE COURT\n\n\n /s/ Jan Horbaly\n Jan Horbaly\n Clerk\ns26\n\f", "ocr": false, "opinion_id": 810063 } ]
Federal Circuit
Court of Appeals for the Federal Circuit
F
USA, Federal
809,036
Garza, Jones, Per Curiam, Prado
2012-09-21
false
united-states-v-hermenegildo-avalos-martinez
null
United States v. Hermenegildo Avalos-Martinez
UNITED STATES of America, Plaintiff-Appellee, v. Hermenegildo AVALOS-MARTINEZ, Defendant-Appellant
Brian W. McKay, Asst. U.S. Atty., Dallas, TX, for Plaintiff-Appellee., Jason Douglas Hawkins, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant.
null
null
null
null
null
null
null
As Revised Oct. 25, 2012.
null
null
0
Unpublished
null
<parties id="b174-6"> UNITED STATES of America, Plaintiff-Appellee, v. Hermenegildo AVALOS-MARTINEZ, Defendant-Appellant. </parties><docketnumber id="AC3"> No. 11-10973. </docketnumber><br><court id="b174-10"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b174-12"> Sept. 21, 2012. </decisiondate><br><otherdate id="b174-13"> As Revised Oct. 25, 2012. </otherdate><br><attorneys id="b175-15"> <span citation-index="1" class="star-pagination" label="149"> *149 </span> Brian W. McKay, Asst. U.S. Atty., Dallas, TX, for Plaintiff-Appellee. </attorneys><br><attorneys id="b175-16"> Jason Douglas Hawkins, Fed. Pub. Def., Dallas, TX, for Defendant-Appellant. </attorneys><br><judges id="b175-18"> Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges. </judges>
[ "700 F.3d 148" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.ca5.uscourts.gov/opinions%5Cunpub%5C11/11-10973.0.wpd.pdf", "author_id": null, "opinion_text": " Case: 11-10973 Document: 00511995434 Page: 1 Date Filed: 09/21/2012\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n September 21, 2012\n\n No. 11-10973 Lyle W. Cayce\n Clerk\n\nUNITED STATES OF AMERICA,\n\n Plaintiff–Appellee\nv.\n\nHERMENEGILDO AVALOS-MARTINEZ,\n\n Defendant–Appellant\n\n\n\n Appeal from the United States District Court\n for the Northern District of Texas\n USDC No. 4:11-CR-44-1\n\n\nBefore JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.\nPER CURIAM:*\n Defendant–Appellant Hermenegildo Avalos-Martinez appeals the sentence\nimposed following his guilty plea for illegally reentering the United States after\nhaving been deported. For the reasons stated below, we AFFIRM.\n I. BACKGROUND\n Avalos-Martinez pleaded guilty to illegally reentering the United States\nafter having been deported, in violation of 8 U.S.C. § 1326. In connection with\nhis guilty plea, Avalos-Martinez stipulated that he is a citizen and national of\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not\nbe published and is not precedent except under the limited circumstances set forth in 5TH CIR.\nR. 47.5.4.\n\f Case: 11-10973 Document: 00511995434 Page: 2 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nMexico, that he was deported from the United States on July 11, 2006, and that\nhe illegally reentered the United States prior to December 30, 2010, the date on\nwhich he was apprehended by federal agents. The criminal complaint for the\ncrime of illegal reentry states that Avalos-Martinez admitted that he had\nunlawfully reentered the United States “sometime in 2008.” The indictment\ncontains no allegation about the date of Avalos-Martinez’s illegal reentry.\n The presentence investigation report (“PSR”) prepared by the probation\noffice disclosed that Avalos-Martinez had previously pleaded guilty to the crimes\nof (1) assault causing bodily injury to a public servant discharging an official\nduty and (2) taking or attempting to take a weapon from a peace officer, both in\nviolation of Texas law. The PSR stated that Avalos-Martinez had been stopped\nby police officers for a traffic violation and that he had fled the scene and been\nchased and wrestled to the ground by the officers, during which altercation\nAvalos-Martinez had punched one of the officers and attempted to remove the\nduty weapon of another officer. The PSR stated that Avalos-Martinez was\nsentenced to two years’ imprisonment for the assault and one concurrent year\nof imprisonment for his attempt to take the officer’s weapon.\n The PSR assigned a base offense level of eight in accordance with section\n2L1.2(a) of the United States Sentencing Guidelines Manual (“U.S.S.G.”). The\nPSR recommended adding four levels because Avalos-Martinez had been\ndeported after a conviction for a felony offense, which referred to his conviction\nfor assault of a public servant. See U.S.S.G. § 2L1.2(b)(1)(D).\n The Government objected to the PSR, arguing that instead of a mere four-\nlevel increase for a prior felony, Avalos-Martinez should receive a sixteen-level\nincrease for having committed a crime of violence when he attempted to take the\nofficer’s duty weapon.1 See id. at § 2L1.2(b)(1)(A)(ii). The district court\n\n 1\n The Government also argued that assault of a public servant qualifies as a crime of\nviolence, an argument which it later abandoned.\n\n 2\n\f Case: 11-10973 Document: 00511995434 Page: 3 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nsustained the Government’s objection and applied the sixteen-level\nenhancement.\n The PSR also assigned Avalos-Martinez four criminal history points based\non his prior Texas convictions for driving while intoxicated and endangering a\nchild. Avalos-Martinez had pleaded guilty to both of these offenses on February\n14, 1997. For driving while intoxicated, Avalos-Martinez was sentenced to\ntwenty-four months’ probation, which probation was revoked on March 28, 2001,\nresulting in a sixty-day jail sentence. For endangering a child, Avalos-Martinez\nwas sentenced to two years’ imprisonment, but his imprisonment was suspended\nfor a five-year probation period. His probation was revoked on May 28, 1999,\nand he was sentenced to one year of imprisonment. Avalos-Martinez raised no\nobjection to this portion of the PSR.\n Based on the recommendations in the PSR, the district court determined\nthat Avalos-Martinez had a total offense level of twenty-one2 and a category V\ncriminal history, resulting in an advisory guidelines range of 70–87 months’\nimprisonment. See id. at ch. 5, pt. A. Having stated that it “d[id] not intend to\nimpose a sentence above the guideline range determined to be applicable,” the\ndistrict court gave Avalos-Martinez a within-guidelines sentence of 72 months,\nfollowed by three years of supervised release. Avalos-Martinez timely appealed.\n II. DISCUSSION\nA. Crime-of-Violence Enhancement\n The first argument that Avalos-Martinez makes on appeal is that the\ndistrict court erred in applying a sixteen-level crime-of-violence enhancement for\nhis conviction for attempting to take a weapon from a peace officer. This court\n\n\n\n 2\n This determination was based upon a base offense level of eight, see U.S.S.G.\n§ 2L1.2(a), a sixteen-level enhancement for a prior conviction for a crime of violence, see id.\nat § 2L1.2(b)(1)(A)(ii), and a three-level reduction for acceptance of responsibility, see id. at\n§ 3El.1.\n\n 3\n\f Case: 11-10973 Document: 00511995434 Page: 4 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nreviews the district court’s interpretation and application of the sentencing\nguidelines de novo, including the issue of whether a defendant’s prior conviction\nqualifies as a crime of violence. United States v. Hernandez-Galvan, 632 F.3d\n192, 196 (5th Cir. 2011). To determine whether an offense qualifies as a crime\nof violence, this court applies a categorical approach, examining the elements of\nthe offense rather than the specific facts underlying the defendant’s conviction.\nUnited States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007).\n Section 2L1.2(b)(1)(A)(ii) of the sentencing guidelines provides that a\ndefendant’s offense level will be increased by sixteen if he was previously\ndeported after having committed a “crime of violence” that results in criminal\nhistory points. An offense is classified as a crime of violence if it is one of several\nenumerated offenses,3 or if it is “any other offense under federal, state, or local\nlaw that has as an element the use, attempted use, or threatened use of physical\nforce against the person of another.” Id. cmt. 1(B)(iii). Thus, the dispositive\nissue is whether the crime of attempting to take the weapon of a peace officer\nhas as an element the use, attempted use, or threatened use of physical force\nagainst another person.\n At the time of Avalos-Martinez’s conviction, the offense was defined as\nfollows:4\n § 38.14. Taking or Attempting to Take Weapon From Peace Officer,\n Parole Officer, or Community Supervision and Corrections\n Department Officer\n ...\n\n\n\n 3\n Neither party argues that Avalos-Martinez committed one of the enumerated crime-of-\nviolence offenses.\n 4\n Avalos-Martinez was convicted in June 2005. For the purposes of determining\nwhether an offense is a crime of violence, we look to the version of the statute in effect at the\ntime of the defendant’s conviction. United States v. Herrera, 647 F.3d 172, 176 n.3 (5th Cir.\n2011).\n\n 4\n\f Case: 11-10973 Document: 00511995434 Page: 5 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\n (b) A person commits an offense if the person intentionally or\n knowingly and with force takes or attempts to take from a peace\n officer . . . the officer’s firearm, nightstick, or personal protection\n chemical dispensing device with the intention of harming the officer\n or a third person.\nTex. Penal Code § 38.14 (2005) (emphasis added). Texas courts have distilled\nthis offense to the following elements:\n (1) Intentionally or knowingly;\n (2) With force;\n (3) Take or attempt to take;\n (4) Peace officer’s firearm;\n (5) From a peace officer;\n (6) With intent to harm officer or third person.\nJackson v. State, 993 S.W.2d 162, 166 (Tex. App.—Eastland 1992, no pet.).\n Neither party disputes that force is an element of the crime. Nevertheless,\nAvalos-Martinez argues that the element of force encompasses not only force\ndirected against a person, but also force directed against property. He argues\nthat if an officer’s firearm were locked inside a patrol car, someone could violate\nthis statute by breaking into the patrol car to steal the firearm because that\nperson would have taken the firearm through the use of force directed against\nthe property of the patrol car. Because he believes that the statute could be\nviolated through such conduct, Avalos-Martinez argues that the offense does not\nhave as a required element the use of force against a person, and that it\ntherefore is not a crime of violence.\n We find Avalos-Martinez’s argument unpersuasive. While we do not argue\nwith his contention that the word “force” is capable of referring to force against\nproperty, we disagree that the word carries such a broad meaning in the context\nof this statute. The statute outlaws using force to take a firearm from an officer\nwith the intention of harming that officer or a third person. This language\nindicates that the harm that the statute seeks to prevent is the danger created\nwhen someone takes a firearm from an officer’s actual possession, stripping the\n\n 5\n\f Case: 11-10973 Document: 00511995434 Page: 6 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nofficer of the means to protect himself and others while giving the wrongdoer the\npower to use that weapon against the officer or others. See United States v.\nHerrera, 375 F.3d 399, 405 (6th Cir. 2004) (“The perpetrator who tries to gain\npossession of an officer’s gun is not ordinarily a mere thief, trying to make off\nwith the firearm, but more often is trying to gain a tactical advantage over the\nofficer in a confrontational situation.”). In this context, the plain meaning of\n“force” is force directed against the officer in possession of the weapon.5\n A further problem with Avalos-Martinez’s proposed interpretation is that\nit renders the “from an officer” element mere surplusage. See Cont’l Cas. Ins.\nCo. v. Functional Restoration Assocs., 19 S.W.3d 393, 402 (Tex. 2000) (“[W]e give\neffect to all words of a statute, and, if possible, do not treat any statutory\nlanguage as mere surplusage.”). If the statute were intended to criminalize the\nconduct of one who uses force against property to take a weapon in an officer’s\nconstructive, as opposed to actual, possession, it could accomplish that objective\nwith the following elements: intentionally or knowingly; with force; take or\nattempt to take; a peace officer’s firearm; with intent to harm the officer or a\nthird person. The way to give meaning to the “from an officer” element is to\ninterpret the statute to criminalize the taking of a weapon from an officer in\nactual possession of that weapon. Once the statute is interpreted in this fashion,\nAvalos-Martinez’s hypothetical falls apart; the force that would be used to take\na weapon from an officer’s actual possession is force against another person.\n Of course, our interpretation of this Texas statute would be trumped by a\ncontrary interpretation by Texas courts. However, our interpretation is\nbuttressed by Texas cases applying the statute. The Government has presented\n\n\n\n 5\n Our conclusion is bolstered by the fact that the weapons mentioned in the\nstatute—firearm, nightstick, personal protection chemical dispensing device—are all typically\nworn on a police officer’s belt, and to take such weapons from an officer’s belt would\nnecessarily entail the use of force against that officer.\n\n 6\n\f Case: 11-10973 Document: 00511995434 Page: 7 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nmany cases in which section 38.14 was violated by conduct involving force\ndirected against an officer. See, e.g., Chadwick v. Texas, 277 S.W.3d 99, 101–02\n(Tex. App.—Austin 2009, pet. granted) (defendant attempted to remove the\nofficer’s gun from its holster during a struggle), aff’d, Chadwick v. Texas, 309\nS.W.3d 558 (Tex. Crim. App. 2010); Hernandez v. Texas, 903 S.W.2d 109, 112\n(Tex. App.—Fort Worth 1995, pet. ref’d) (same); Jackson, 993 S.W.2d at 164\n(same). Avalos-Martinez has failed to present any case applying the statute in\nwhich force was directed against property rather than against a person. He has\nalso failed to present any case wherein a Texas court accepted his interpretation\nof “force.” In the absence of case law supporting the interpretation proposed by\nAvalos-Martinez, we must rest on our interpretation of the plain language of the\nstatute, which leads us to the conclusion that “force” means force against people,\nnot property. Therefore, we conclude that the crime of attempting to take a\nweapon from a peace officer has the use of force against a person as a necessary\nelement, and that it qualifies as a crime of violence under U.S.S.G.\n§ 2L1.2(b)(1)(A)(ii). The district court did not err in applying the sixteen-level\nenhancement.\nB. Criminal History Points\n The second argument that Avalos-Martinez makes on appeal is that the\ndistrict court erred in assigning criminal history points to two of his prior\nconvictions that occurred more than ten years prior to the instant offense and\nthat resulted in less than one year and one month of imprisonment. Avalos-\nMartinez failed to make this objection before the district court and thus he\nacknowledges that our review is for plain error. See United States v. Espinoza,\n677 F.3d 730, 735 (5th Cir. 2012). To show plain error, Avalos-Martinez must\nshow (1) an error (2) that was clear or obvious (3) that affected his substantial\nrights. Puckett v. United States, 556 U.S. 129, 135 (2009). A sentencing error\naffected a defendant’s substantial rights if there is a “reasonable probability\n\n 7\n\f Case: 11-10973 Document: 00511995434 Page: 8 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nthat, but for the district court’s misapplication of the Guidelines, he would have\nreceived a lesser sentence.” United States v. John, 597 F.3d 263, 285 (5th Cir.\n2010) (internal quotation mark omitted). If Avalos-Martinez establishes plain\nerror, we have the discretion to correct the error if it “seriously affects the\nfairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S.\nat 135 (internal quotation marks omitted).\n Section 4A1.2(e) of the sentencing guidelines provides that a prior\nsentence imposed more than ten years before the commencement of the instant\noffense is not to be counted toward a defendant’s criminal history unless it was\na sentence of imprisonment exceeding one year and one month. U.S.S.G.\n§ 4A1.2(e)(1)–(3). The two prior sentences at issue were imposed on February\n14, 1997, and the “commencement of the instant offense”—i.e., the moment that\nAvalos-Martinez illegally reentered the United States—occurred “sometime in\n2008”; thus, the prior sentences were imposed more than ten years before the\ncommencement of the instant offense and should have been counted only if they\nwere sentences of imprisonment exceeding one year and one day. However, both\nwere sentences of probation, and although both were revoked, neither revocation\nresulted in a sentence of imprisonment exceeding one year and one day. It was\ntherefore clear error to assign criminal history points based on these sentences,\nand the Government concedes as much. See United States v. Arviso-Mata, 442\nF.3d 382, 385 (5th Cir. 2006).\n This error resulted in Avalos-Martinez having four more criminal history\npoints than he should have had, making his criminal history category V when\nit should have been category IV. See U.S.S.G. ch. 5, pt. A. Accordingly, the\ndistrict court applied an advisory guidelines range of 70–87 months instead of\nthe correct advisory guidelines range of 57–71 months. Avalos-Martinez’s\nsentence of 72 months exceeds the correct advisory guidelines range. In\naddition, the district court had stated that it did not intend impose a sentence\n\n 8\n\f Case: 11-10973 Document: 00511995434 Page: 9 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\nabove the applicable guidelines range. Based on the district court’s expressed\nintention and the fact that Avalos-Martinez’s sentence exceeded the correct\nadvisory guidelines range, the district court’s error affected his substantial\nrights, which the Government also concedes. See United States v. Mudekunye,\n646 F.3d 281, 290 (5th Cir. 2011) (holding that a defendant’s substantial rights\nhad been affected when the correct and incorrect guidelines ranges overlapped,\nthe defendant was sentenced above the correct guidelines range, and it was not\napparent from the record that the defendant would have received an above-\nguidelines sentence).\n The final issue we must decide is whether this error seriously affects the\nfairness, integrity or public reputation of judicial proceedings such that we\nshould exercise our discretion to correct it. The Government has expressed no\nposition on whether we should exercise our discretion in this case. We have\nnoted that “[n]ot every error that increases a sentence need be corrected by a call\nupon plain error doctrine.” United States v. Ellis, 564 F.3d 370, 378 (5th Cir.\n2009). Instead, we look to “the degree of the error and the particular facts of the\ncase” to determine whether to exercise our discretion. United States v. Davis,\n602 F.3d 643, 651 (5th Cir. 2010).\n In this case, Avalos-Martinez received a 72-month sentence that exceeded\nthe correct advisory guidelines range by one month. Although he received\nprobation for each of the convictions giving rise to the challenged criminal\nhistory points, his probation for each conviction was revoked. In the case of the\nchild endangerment conviction, his probation was revoked for several violations:\nfailure to report for seventeen months, failure to pay supervision fees and court\ncosts, failure to attend substance abuse treatment, failure to complete\ncommunity service, and an arrest for evading arrest in connection with a\nreported assault. His revocation sentence of one year fell just short of the\nsentence required for the conviction to be properly counted. Considering the\n\n 9\n\f Case: 11-10973 Document: 00511995434 Page: 10 Date Filed: 09/21/2012\n\n\n\n No. 11-10973\n\ndegree to which his sentence exceeds the correct guidelines range and the facts\nsurrounding these convictions, we decline to exercise our discretion to correct the\nerror in Avalos-Martinez’s sentence.\n III. CONCLUSION\n For the foregoing reasons, the judgment of the district court is\nAFFIRMED.\n\n\n\n\n 10\n\f", "ocr": false, "opinion_id": 809036 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
238,329
Clark, Medina, Per Curiam, Waterman
1956-01-16
false
patricia-thurnau-as-administratrix-of-the-estate-of-philip-george-thurnau
null
Patricia Thurnau, as Administratrix of the Estate of Philip George Thurnau, Deceased v. Alcoa Steamship Company, Inc.
Patricia THURNAU, as Administratrix of the Estate of Philip George Thurnau, Deceased, Plaintiff-Appellant, v. ALCOA STEAMSHIP COMPANY, Inc., Defendant-Appellee
Henry Fogler, New York City, for plaintiff-appellant., J. Ward O’Neill, New York City (Haight, Gardner, Poor & Havens, New York City) (John C. Mundt, Jr., New York City, of counsel), for defendant.appellee.
null
null
null
null
null
null
null
Submitted Dec. 16, 1955.
null
null
4
Published
null
<parties data-order="0" data-type="parties" id="b129-12"> Patricia THURNAU, as Administratrix of the Estate of Philip George Thurnau, Deceased, Plaintiff-Appellant, v. ALCOA STEAMSHIP COMPANY, Inc., Defendant-Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b129-14"> No. 179, Docket 23608. </docketnumber><br><court data-order="2" data-type="court" id="b129-15"> United States Court of Appeals Second Circuit. </court><br><otherdate data-order="3" data-type="otherdate" id="b129-16"> Submitted Dec. 16, 1955. </otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b129-17"> Decided Jan. 16, 1956. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b130-9"> <span citation-index="1" class="star-pagination" label="74"> *74 </span> Henry Fogler, New York City, for plaintiff-appellant. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b130-10"> J. Ward O’Neill, New York City (Haight, Gardner, Poor &amp; Havens, New York City) (John C. Mundt, Jr., New York City, of counsel), for defendant.appellee. </attorneys><br><p data-order="7" data-type="judges" id="b130-11"> Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit ■Judges. </p>
[ "229 F.2d 73" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/229/229.F2d.73.179.23608.html", "author_id": null, "opinion_text": "229 F.2d 73\n Patricia THURNAU, as Administratrix of the Estate of PhilipGeorge Thurnau, Deceased, Plaintiff-Appellant,v.ALCOA STEAMSHIP COMPANY, Inc., Defendant-Appellee.\n No. 179, Docket 23608.\n United States Court of Appeals Second Circuit.\n Submitted Dec. 16, 1955.Decided Jan. 16, 1956.\n \n Henry Fogler, New York City, for plaintiff-appellant.\n J. Ward O'Neill, New York City (Haight, Gardner, Poor &amp; Havens, New York City) (John C. Mundt, Jr., New York City, of counsel), for defendant-appellee.\n Before CLARK, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.\n PER CURIAM.\n \n \n 1\n Plaintiff's decedent, philip G. Thurnau, a third mate of the S.S. Alcoa Pegasus, died as the result of injuries sustained while riding as a passenger in an automobile driven by a fellow crewman, Wold. Thurnau and his companion were returning from shore leave to their duties aboard ship at the time of the accident. There was sufficient evidence from which a jury could find that Thurnau's death was caused by the negligence of Wold in the operation of the car. The car had been rented and lent to Wold by a third member of the ship's crew, kossman.\n \n \n 2\n The sole question on this appeal-- even if we assume, arguendo, that Thurnau was acting 'in the course of employment' within the meaning of the Jones Act while returning to his ship from shore leave-- is whether a shipowner is under a duty to provide a safe means of transportation between the ship and any place of amusement crew members desire to visit while on shore leave in the vessel's home port. We think it clear that the shipowner is under no such duty, and is therefore not liable under the Jones Act, 46 U.S.C.A. &#167; 688, for the negligence, if any, of Wold and Kossman in renting and operating a car for their private pleasure while on shore leave. See Paul v. United States, 3 Cir., 1953, 205 F.2d 38; Lemon v. United States, D.C.Md.1946, 68 F. Supp. 793.\n \n \n 3\n The absence, because of a bus strike, of bus transportation from the dock to the places of amusement frequented by these sailors does not make the shipowner responsible for the safety of the other readily available means of transportation, such as taxis or rented cars, that may happen to be chosen by the crew. The cases relied on by the plaintiff are all distinguishable. Some are maintenance and cure cases, Warren v. United States, 1951, 340 U.S. 523, 71 S. Ct. 432, 95 L. Ed. 503; Aguilar v. Standard Oil Co., 1943, 318 U.S. 724, 63 S. Ct. 930, 87 L. Ed. 1107. Some are assault cases, which appear to be sui generis, Nowery v. Smith, D.C., 69 F. Supp. 755, affirmed 3 Cir., 1947, 161 F.2d 732; Kyriakos v. Goulandris, 2 Cir., 1945, 151 F.2d 132. And the remainder are cases involving negligence of the shipowner in creating or maintaining dangerous conditions adjacent to the ship, Marceau v. Great Lakes Transit Corporation, 2 Cir., 1945, 146 F.2d 416; O'Donnell v. Great Lakes Dredge &amp; Dock Co., 1943, 318 U.S. 36, 63 S. Ct. 488, 87 L. Ed. 596.\n \n \n 4\n Affirmed.\n \n ", "ocr": false, "opinion_id": 238329 } ]
Second Circuit
Court of Appeals for the Second Circuit
F
USA, Federal
2,704,087
Rocco
2011-11-18
false
state-ex-rel-jackson-v-sutula
Sutula
State ex rel. Jackson v. Sutula
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "2011 Ohio 6086" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-6086.pdf", "author_id": 8130, "opinion_text": "[Cite as State ex rel. Jackson v. Sutula, 2011-Ohio-6086.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n No. 97157\n\n\n\n\n STATE OF OHIO, EX REL.\n ELVESTER JACKSON\n RELATOR\n\n vs.\n\n JUDGE KATHLEEN A. SUTULA, ET AL.\n RESPONDENT\n\n\n\n\n JUDGMENT:\n WRIT DENIED\n\n\n Writ of Mandamus\n Motion Nos. 447574 and 449188\n Order No. 448680\n\n RELEASED DATE: November 18, 2011\n\fFOR RELATOR\n\nElvester Jackson #A563-602\nMansfield Correctional Institution\nP. O. Box 788\nMansfield, OH 44901\n\nATTORNEYS FOR RESPONDENT\n\nWilliam D. Mason\nCuyahoga County Prosecutor\n\nBy: James E. Moss\nAssistant County Prosecutor\n9th Floor Justice Center\n1200 Ontario Street\nCleveland, Ohio 44113\n\n\n\n\nKENNETH A. ROCCO, J.:\n\n {¶ 1} Elvester Jackson has filed a complaint for a writ of mandamus. Jackson\n\nseeks an order from this court that requires Judge Kathleen A. Sutula and the warden of\n\nthe Mansfield Correctional Institution, Terry Tibbals, to convey him to the Cuyahoga\n\nCounty Court of Common Pleas pursuant to R.C. 2953.13 and the appellate judgment as\n\nrendered by this court in State v. Jackson, Cuyahoga App. No. 93079, 2010-Ohio-3500.\n\nJudge Sutula and Warden Tibbals have filed motions for summary judgment, which are\n\ngranted.\n\n {¶ 2} In order for this court to issue a writ of mandamus, Jackson must\n\ndemonstrate that: (1) he possesses a clear legal right to be conveyed from the Mansfield\n\fCorrectional Institution to the Cuyahoga County Court of Common Pleas; (2) Judge\n\nSutula and Warden Tibbals possess a duty to have Jackson conveyed from the Mansfield\n\nCorrectional Institution to the Cuyahoga County Court of Common Pleas; and (3) there\n\nexists no other adequate remedy in the ordinary course of the law. State ex rel. Ney v.\n\nNiehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914; State ex rel. Harris v. Rhodes\n\n(1978), 54 Ohio St.2d 41, 374 N.E.2d 641. Herein, Jackson argues that he possesses a\n\nright to be transported to the Cuyahoga County Court of Common Pleas pursuant to R.C.\n\n2953.13, which provides that when a defendant has been committed to a state correctional\n\ninstitution and the judgment of commitment is reversed on appeal or a new trial is\n\nordered, the defendant shall be either discharged or conveyed to the jail of the county in\n\nwhich he or she was convicted.\n\n {¶ 3} The opinion, as rendered by this court in State v. Jackson, supra, however,\n\ndid not reverse Jackson’s conviction nor did the opinion order a new trial. In fact,\n\nJackson’s drug trafficking convictions and resulting prison sentence were affirmed on\n\nappeal. Id. Jackson possesses no right per R.C. 2953.13 to be conveyed from the\n\nMansfield Correctional Institution to the Cuyahoga County Court of Common Pleas nor\n\ndoes Judge Sutula or Warden Tibbals possess any duty to convey Jackson from the\n\nMansfield Correctional Institution to the Cuyahoga County Court of Common Pleas.\n\nState ex rel. Briscoe v. Matia, 128 Ohio St.3d 365, 2011-Ohio-760, 944 N.E.2d 667.\n\n {¶ 4} Accordingly, we grant summary judgment on behalf of Judge Sutula and\n\nWarden Tibbals. Costs to Jackson. It is further ordered that the Clerk of the Eighth\n\fDistrict Court of Appeals serve notice of this judgment upon all parties as required by\n\nCiv.R. 58(B).\n\n Writ denied.\n\n\n\n\nKENNETH A. ROCCO, JUDGE\n\nMELODY J. STEWART, P.J., and\nMARY J. BOYLE, J., CONCUR\n\f", "ocr": false, "opinion_id": 2704087 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
1,657,799
Blanche, Covington and Chiasson
1977-10-17
false
st-pierre-v-gabel
Gabel
St. Pierre v. Gabel
null
null
null
null
null
null
null
null
null
null
null
null
9
Published
null
null
[ "351 So. 2d 821" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4565, "opinion_text": "\n351 So. 2d 821 (1977)\nDavid ST. PIERRE\nv.\nCharles GABEL et al.\nNo. 11520.\nCourt of Appeal of Louisiana, First Circuit.\nOctober 17, 1977.\n*822 Larry C. Becnel, Gramercy, J. Arthur Smith, III, Baton Rouge, of counsel for plaintiff-appellant David St. Pierre.\nW. Luther Wilson, Baton Rouge, of counsel for defendant &amp; third party plaintiffs-appellants Charles Gabel, et al.\nCharles W. Franklin, Baton Rouge, of counsel for defendants &amp; third party plaintiffs-appellees Rockwell International Corp. &amp; Employers Mut. Ins. Co. of Wausau, Wisconsin.\nDon L. Broussard, Lafayette, of counsel for Travelers Ins. Co. appellee.\nBefore BLANCHE, COVINGTON and CHIASSON, JJ.\nCOVINGTON, Judge:\nThe plaintiff, David St. Pierre, brought this action for injuries sustained when an electric miter box saw fell on his right hand. At the time of the accident, the plaintiff was employed as a carpenter by R &amp; M Corporation, a manufacturer of prefabricated and portable structures and buildings.\n*823 The plaintiff sued Charles Gabel, Ralph Riles and Eunice Riles, as executive officers of his employer, and their liability insurer, The Travelers Indemnity Company, as well as Rockwell International Corporation,[1] the manufacturer of the saw, and its insurer, Employers Mutual Insurance Company of Wausau, Wisconsin. The executive officers and their insurer third-partied the manufacturer for indemnity and contribution, and Rockwell in turn third-partied the executive officers for contribution. Subsequently, The Travelers Insurance Company intervened for reimbursement of the workmen's compensation benefits paid to the plaintiff.\nOn November 16, 1973, St. Pierre, almost 22 years old, was using the electric miter box saw manufactured by defendant Rockwell, and owned by R &amp; M, his employer, to cut and miter angles into moldings. The saw consists of a circular saw mounted on an arm. To engage the saw blade with the material being cut on the worktable, the operator pulls down the arm of the saw. When the operator releases the arm (or handle), the saw swings back to the upright, or out-of-use, position by means of a spring. Additionally, the saw can be pivoted over the worktable to change the angle of the cut. On this particular saw, the \"brake\" button, which is used to stop the spinning saw blade, was broken. The fact that the \"brake\" button was broken was known to the executive officers of R &amp; M and to the plaintiff, St. Pierre. St. Pierre and other employees had used the saw earlier in the day. On this particular occasion, St. Pierre had cut a piece of molding. He released the handle of the saw, and the saw swung to its upright position. Then, while the blade was still spinning the saw fell on St. Pierre's right hand, causing the injuries of which he complains in this suit.\nThe case was tried by jury, and the matter was presented on written interrogatories. The jury concluded that the three executive officers of R &amp; M were guilty of negligence proximately causing the plaintiff's injuries. It further concluded that Rockwell was negligent, but that its negligence was not a proximate cause of the plaintiff's injuries. Accordingly, it answered the interrogatories and rendered verdicts as follows: against Charles Gabel, Ralph Riles and Eunice Riles, and their insurer, Travelers Indemnity Company, in the sum of $193,000.00; in favor of Rockwell International Corporation, and its insurer, dismissing the plaintiff's main demand; dismissing all third party demands. The workmen's compensation reimbursement claim was stipulated. Judgment on the verdict was entered on April 27, 1976.\nThe plaintiff appealed devolutively from that part of the final judgment dismissing his claim against Rockwell and its insurer, Employers Mutual. Defendants Gabel, Mr. &amp; Mrs. Riles, and The Travelers Indemnity Company appealed suspensively and devolutively from the judgment.\nSubsequently, The Travelers Indemnity Company, for itself and its insureds, settled the plaintiff's claim for $162,500.00, plus a waiver of all workmen's compensation benefits, and took an assignment of the plaintiff's rights against Rockwell.[2]\nAppellants argue that Rockwell, the manufacturer, negligently designed and manufactured the saw, and that it was Rockwell's negligence alone which caused the injuries to St. Pierre; and, alternatively, that the concurrent negligence of the manufacturer and the executive officers of R &amp; M combined to cause the injuries of St. Pierre, as a consequence of which Rockwell owes contribution. They contend that Rockwell improperly designed the spring mechanism which returns the saw to the out-of-use position and defectively manufactured the saw by using a spring easily susceptible to breaking. Appellants complain *824 that the jury thus erred in finding that defendant Rockwell's negligence was not a proximate cause of St. Pierre's injury.\nThe manufacturer of a product is liable to any person, whether the purchaser or a third person, who without fault on his part, sustains an injury caused by a defect in the design, composition, or manufacture of the product, if the injury might have been reasonably anticipated. See Weber v. Fidelity &amp; Casualty Insurance Company of New York, 259 La. 599, 250 So. 2d 754 (1971); Ashley v. Nissan Motor Corp. in U.S.A., 321 So. 2d 868 (La.App. 1 Cir. 1975), writ denied, 323 So. 2d 478 (La.1975).\nHowever, a manufacturer can not be held liable for injuries caused by a defective product where the defect was created by an alteration which amounts to an intervening or superseding cause. Landry v. E. A. Caldwell, Inc., 280 So. 2d 231 (La.App. 1 Cir. 1973); Annot. 41 A.L.R. 3d 1253. It is clear that the jury found that a significant part of the Rockwell saw did not fail as a result of the negligence of the manufacturer, but failed due to the intervention of an independent cause, i. e., the use of improper replacement parts to repair the saw by the employer, through its executive officers or employees. See Frey v. Travelers Insurance Company, 271 So. 2d 56 (La.App. 4 Cir. 1972), writ denied, 273 So. 2d 840 (La.1973).\nA jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, or its application of law is clearly erroneous. See Perrin v. St. Paul Fire and Marine Insurance Company, 340 So. 2d 421 (La.App. 4 Cir. 1976). The finding of the trier of fact, which has evidence before it furnishing a reasonable factual basis for its finding, based upon its reasonable evaluation of credibility will not be disturbed on appeal in the absence of manifest error. See Canter v. Koehring Company, 283 So. 2d 716 (La.1973).\nThe factual findings of the jury in determining the issue of proximate causation in the instant case are supported by credible evidence in the record. We have reviewed the evidence and under the particular facts and circumstances presented herein, we find no manifest error in the jury's findings. See Dyson v. Gulf Modular Corporation, 338 So. 2d 1385 (La.1976).\nThere was evidence which if believed by the jury, as the verdict indicates it was, goes to show that the executive officers of R &amp; M were negligent in maintaining and repairing the Rockwell saw, and that they had allowed another, non-stock, spring to be substituted for the manufacturer's stock spring, and that a substitute screw was allowed to be used in place of the stock screw to retain the spring; that Ralph Riles, as President of R &amp; M, had the overall responsibility of the manufacturing process, as well as other corporate functions, and that he was negligent in carrying out his duties with respect to the Rockwell saw; that Eunice Riles, though primarily an administrative officer, had certain supervisory duties over the shop operation, which duties with respect to the Rockwell saw were negligently performed; and that Charles Gabel, the shop foreman, was primarily in charge of the shop area and was directly responsible for maintaining the shop equipment in a safe operating condition and that he had negligently performed his duties, particularly with respect to the Rockwell saw. There was evidence that the \"brake\" button on this saw was broken, and had been broken for some time without any effort to repair it; yet, the saw was authorized by the executive officers to be continued in use. See Canter v. Koehring Company, supra.\nThere was also sufficient evidence to allow the jury to conclude that the substitute spring, rather than breaking, slipped off its retaining screw because a replacement screw, not designed for the saw, was used to attach the spring. Three witnesses, including Mr. Gabel, the shop foreman, testified that the spring on the Rockwell saw at the time of the accident was not the spring that came on the saw and was not a Rockwell stock model spring; and there was evidence of a substitution for the original retainer screw.\n*825 The jury also had the benefit of the testimony of the expert witnesses, Dr. Sabbaghian and James Dover. Dr. Sabbaghian expressed the opinion that the Rockwell saw was defectively designed and that the spring broke, causing the accident; Mr. Dover expressed the opinion that the saw was properly designed, and that the accident was caused by improper repairing and maintenance of the saw.\nEven though the expert witnesses' testimony differed on the question of the cause of the accident, and in several other respects, it is largely a matter of fact for the jury to determine the most credible evidence, and a finding of fact in this regard will not be overturned unless manifest error appears in the record. Green v. State, Southwest Louisiana Charity Hospital, 309 So. 2d 760 (La.App. 3 Cir. 1975), writ denied, 313 So. 2d 601 (La.1975).\nThere was also some evidence that St. Pierre used the saw improperly; however, from its verdict, the jury either considered this not a proximate cause of the injury, or that the plaintiff had not been properly instructed by his employer in its use. There was evidence from which the jury could find that the plaintiff was not instructed in the proper use of the saw. The employer's attitude toward safety, maintenance, repair and proper use of the shop equipment can be described as \"hazardously indifferent\"— to say the least, safety was not first.\nOur duty on appellate review requires us to affirm unless the trier's decision on the facts is not supported by the evidence, or the application of law is clearly erroneous, as we stated above. In reviewing the decision of the jury we are directed to follow the Canter guideline. See Ashley v. Nissan Motor Corp. in U.S.A., supra.\nWe find no manifest error; the credible evidence reasonably supports the jury's verdict. For the reasons assigned, we affirm at the defendants-appellants' costs.\nAFFIRMED.\nNOTES\n[1] Defendant Rockwell was sued as \"Rockwell Manufacturing Company\" and plaintiff did not know the name of its insurer when suit was filed.\n[2] Counsel for The Travelers Indemnity Company and the executive officers was enrolled as counsel of record for appellant, David St. Pierre, to assert the claims of St. Pierre on appeal.\n\n", "ocr": false, "opinion_id": 1657799 } ]
Louisiana Court of Appeal
Louisiana Court of Appeal
SA
Louisiana, LA
1,055,004
Judge David R. Farmer
2004-11-24
false
susan-simmons-v-state-farm-general-insurance-compa
null
Susan Simmons v. State Farm General Insurance Company
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/044/SimmonsS.pdf", "author_id": 8270, "opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT JACKSON\n October 12, 2004 Session\n\n SUSAN SIMMONS, ET AL. v. STATE FARM GENERAL INSURANCE\n COMPANY, ET AL.\n\n Direct Appeal from the Circuit Court for Shelby County\n No. CT-000617-03 Robert Childers, Judge\n\n\n No. W2003-02643-COA-R3-CV - Filed November 24, 2004\n\n\nHomeowner’s insurance policyholders filed a complaint against an insurance carrier seeking benefits\nunder policy and a declaratory judgment that policy language was ambiguous. Homeowners filed\na motion seeking certification as a class action. The insurance carrier filed a motion for summary\njudgment, asserting that plaintiff Beckwith’s claim for benefits was time barred and plaintiff\nSimmons’s claim was non-justiciable. The insurance carrier filed separate motions to stay discovery\nand defer the class certification hearing until after the hearing on the motion for summary judgment,\nwhich the trial court granted. The trial court granted the insurance carrier summary judgment against\nall plaintiffs, thereby disposing of the class certification issue. Homeowners appeal from the order\ngranting summary judgment. We affirm.\n\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed; and\n Remanded\n\nDAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,\nand HOLLY M. KIRBY , J., joined.\n\nP. Mark Ledbetter, Memphis, Tennessee, for the appellants, Susan Simmons and Corrine Beckwith,\nand as a representative of a Class of Homeowners’ Policyholders of State Farm Fire & Casualty\nCompany.\n\nGeorge T. Lewis, III and Thomas F. Barnett, Memphis, Tennessee, for the appellees, Sate Farmer\nGeneral Insurance Company, Sate Farm Fire & Casualty Company, State Farm Mutual Automobile\nInsurance Company.\n\f OPINION\n\n Facts and Procedural Background\n\n Plaintiffs/Appellants Susan Simmons (“Ms. Simmons”) and Corrine Beckwith (“Ms.\nBeckwith,” or, collectively with Ms. Simmons, “the Plaintiffs”) maintained homeowner’s insurance\nwith Defendant/Appellee State Farm Fire and Casualty Company (“State Farm”) under State Farm’s\nForm FP7955 KT “all risks” homeowner’s insurance policy (the “FP7955 KT policy”). The\nPlaintiffs allege that over 300,000 Tennessee residents are insured under the FP7955 KT policy.\n\n In early September 2000, Ms. Beckwith discovered cracks in her walls and ceilings, as well\nas dampness in her bedroom carpet. Upon further investigation, Ms. Beckwith discovered that the\ndamage was caused by a leak in a pressurized water pipe inside her home. On September 11, 2000,\nMs. Beckwith contacted her State Farm agent, Chuck Petrey, who, according to Ms. Beckwith’s\ndeposition testimony, informed her that her insurance policy would not cover the type of loss she\nsustained. Ms. Beckwith hired a structural engineer who opined that the leak had existed for a\nsubstantial period of time, eroding the ground beneath her home and causing the foundation to settle.\nAt her own expense, Ms. Beckwith hired servicemen to perform remedial work on the foundation\nand complete other repairs to her home. Ms. Beckwith did not contact State Farm again about her\nclaim until March 2002, some eighteen months after Ms. Beckwith discovered the damage. On\nMarch 22, 2002, after inspecting Ms. Beckwith’s home, State Farm mailed a letter to Ms. Beckwith\ninforming her that her policy would not cover the type of loss she sustained.\n\n On September 9, 2002, the Plaintiffs filed their Complaint for Declaratory and Other relief,\nRequest for Certification as a Class Action and a Speedy hearing Under Rule 57, T.R.C.P. In the\ncomplaint, Ms. Beckwith sought recovery from State Farm for the damage to her home, which she\nalleged was covered under the FP7955 KT policy. Ms. Simmons joined in this action to serve as\nclass representative and sought a declaratory judgment construing various provisions of the FP7955\nKT policy. Unlike Ms. Beckwith, Ms. Simmons did not allege any loss. In their complaint, the\nPlaintiffs sought a declaratory judgment on behalf of themselves and other FP7955 KT policyholders\nthat the policy language State Farm relied upon in denying coverage was deceptive, confusing, and\nambiguous and, therefore, should be construed against State Farm. Additionally, in their complaint,\nthe plaintiffs sought certification as a class action on behalf of over 300,000 FP7955 KT\npolicyholders in Tennessee.\n\n On September 25, 2002, State Farm filed an Objection to Class Certification, asserting that\nthis action was not an appropriate matter for class certification and requesting a hearing. On\nSeptember 30, 2002, State Farm filed its answer, wherein it asserted that the Plaintiffs were barred\nfrom recovery for “fail[ure] to comply with conditions to coverage set forth in the policy.”\nContemporaneous with the filing of its answer, State Farm filed a motion for summary judgment\nasserting that the FP7955 KT policy did not provide coverage for the individual plaintiffs’ alleged\nlosses. In support of its motion for summary judgment, State Farm contended that Ms. Beckwith’s\nclaim was contractually time-barred because she failed to initiate this lawsuit within one year from\n\n\n -2-\n\fthe date of loss, as required under the limitations provision in her policy. With regards to Ms.\nSimmons’s claim, State Farm asserted that her claim for declaratory judgment was non-justiciable\nbecause she had not alleged any loss.\n\n On November 7, 2002, the Plaintiffs filed a motion to certify this case as a class action. Soon\nthereafter, the Plaintiffs served discovery requests upon State Farm in the form of interrogatories,\nrequests for admissions, and requests for production of documents. On December 16, 2002, State\nFarm provided responses to the Plaintiff’s discovery requests. In its discovery responses, State Farm\nobjected to many of the Plaintiff’s requests, asserting that the discovery requests were exceedingly\nbroad, unduly burdensome, and were relevant only to issues related to class certification.\nMeanwhile, State Farm filed a motion to defer the hearing on the Plaintiffs’ class certification\nmotion until after the hearing on State Farm’s summary judgment motion. After a hearing1 on State\nFarm’s motion to defer, the trial court granted State Farm’s motion and deferred the Plaintiff’s\nmotion for class certification until after a hearing on State Farm’s motion for summary judgment.\nOn January 6, 2003, the Plaintiffs filed a motion to compel State Farm to provide more complete\nanswers to the Plaintiffs’ previous discovery requests. The trial court, however, issued an order\nstaying discovery until resolution of State Farm’s motion for summary judgment, finding that the\nPlaintiffs’ requested discovery “w[ould] have little, if any, bearing upon the issues raised in [State\nFarm’s motion for summary judgment].”\n\n The trial court granted State Farm summary judgment, finding that Ms. Beckwith’s claim was\ntime-barred and Ms. Simmons claim was non-justiciable. In its order, the trial court stated that\n“[summary judgment was] granted as to all Plaintiffs and all claims.” Thus, the trial court dismissed\nthe entire case with prejudice because the summary judgment ruling “dispose[d] of all the issues in\nthe case.”\n\n The Plaintiffs appealed the trial court’s order granting summary judgment and have presented\nthe following issues, as we perceive them, for our review:\n\n (1) Whether the trial court erred in granting summary judgment prior to a ruling\n on class certification;\n\n (2) Whether the trial court erred in staying discovery until the hearing on the\n motion for summary judgment; and\n\n (3) Whether the trial court erred in granting summary judgment to State Farm on\n the grounds that Ms. Beckwith’s claim was time-barred and Ms. Simmons\n had not alleged any loss, thereby rendering her claim non-justiciable.\n\n\n\n\n 1\n The record on appeal does not contain transcripts from any hearings or other proceedings held in the trial court.\n\n\n -3-\n\f Standard of Review\n\n A trial court’s conclusions on issues of law are reviewed de novo with no presumption of\ncorrectness. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002). We review a trial court’s\ndecision on a motion for class certification under Rule 23 of the Tennessee Rules of Civil Procedure.\nTenn. R. Civ. P. 23 (2004). In general, trial courts have broad discretion in determining whether a\nmatter should proceed as a class action. Meighan v. U.S. Sprint Communications Co., 924 S.W.2d\n632, 637 (Tenn. 1996). With regard to a trial court’s decisions regarding discovery issues, this Court\nmust review those decisions under an abuse of discretion standard of review. Boyd v. Comdata\nNetwork, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).\n\n Summary judgment is appropriate only when the moving party can demonstrate that there\nare no disputed issues of material fact, and that it is entitled to judgment as a matter of law. Tenn.\nR. Civ. P. 56.04 (2004); Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993). The party moving for\nsummary judgment must affirmatively negate an essential element of the nonmoving party's claim\nor conclusively establish an affirmative defense. McCarley v. W. Quality Food Serv., 960 S.W.2d\n585, 588 (Tenn. 1998). When a party makes a properly supported motion for summary judgment,\nthe burden shifts to the nonmoving party to establish the existence of disputed material facts. Id.\nIn determining whether to award summary judgment, the trial court must view the evidence in the\nlight most favorable to the nonmoving party and draw all reasonable inferences in that party's favor.\nStaples v. CBL & Assocs., 15 S.W.3d 83, 89 (Tenn. 2000). The court should award summary\njudgment only when a reasonable person could reach but one conclusion based on the facts and the\ninferences drawn from those facts. Id. We review an award of summary judgment de novo with no\npresumption of correctness afforded to the trial court. Guy v. Mut. of Omaha Ins. Co., 79 S.W.3d\n528, 534 (Tenn. 2002).\n\n (1) Timing of Class Certification Decision\n\n Turning to the first issue raised on appeal, the Plaintiffs argue that it was error for the trial\ncourt to grant summary judgment prior to a ruling on class certification. In this case, the Plaintiffs\nsought class certification in the complaint itself and by a subsequently filed motion for class\ncertification. The trial court, however, deferred the class certification ruling until after a hearing on\nState Farm’s motion for summary judgment. The trial court granted State Farm summary judgment\nagainst the individual plaintiffs’ claims, thereby rendering the class certification issue moot.\n\n The Plaintiffs contend that, by granting State Farm summary judgment against the named,\nindividual plaintiffs and, thus, “mooting” the class action, the trial court violated the spirit of Rule\n23.03 of the Tennessee Rules of Civil Procedure. Rule 23.03 provides, in relevant part, “[a]s soon\nas practicable after the commencement of an action brought as a class action, . . . the court shall\ndetermine by order whether the action is to be so maintained. An order under this section may be\nconditional and may be altered or amended before the decision on the merits.” Tenn. R. Civ. P.\n23.03(1). The Plaintiffs cite Rule 23.03 for the proposition that a class certification determination\nmust always be considered prior to a merits adjudication or hearing on a dispositive motion.\n\n\n -4-\n\f Under Rule 23.03(1), the trial court must determine class certification “at an early practicable\ntime.” Tenn. R. Civ. P 23.03(1). This indefinite language prescribing the timing of certification\ndecisions is purposefully imprecise because it is intended to provide the courts latitude in making\nclass certification determinations. 5 James Wm. Moore et al., Moore’s Federal Practice § 23.81[1]\n(3d ed. 2004). In general, federal courts2 allow rulings on dispositive motions prior to a class\ncertification determination. Miami Univ. Wrestling Club v. Miami Univ., 302 F.3d 608, 616 (6th Cir.\n2002) (“We have consistently held that a district court is not required to rule on a motion for class\ncertification before ruling on the merits of the case.”); Curtin v. United Airlines, Inc., 275 F.3d 88,\n92 (D.C. Cir. 2001) (holding that where the merits of a party’s claim can be disposed of by summary\njudgment, the timing of the disposition of motions for class certification and summary judgment is\nwithin the discretion of the court); accord Schweizer v. Trans Union Corp., 136 F.3d 233, 239 (2d\nCir. 1998); Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir. 1997); Floyd v. Bowen, 833 F.2d 529,\n534–35 (5th Cir. 1987). Other authorities likewise agree that, under appropriate circumstances,\n“precertification rulings on threshold dispositive motions are proper.” Manual for Complex\nLitigation (Fourth) §21.133 (2004) (“The court may rule on motions pursuant to Rule 12, Rule 56,\nor other threshold issues before deciding on certification; however, such rulings bind only the named\nparties.”); see also Robert Banks Jr. & June F. Entman, Tennessee Civil Procedure § 6-10(q) (2d ed.\n2004) (“The [class certification] decision may be delayed pending determination of a defendant’s\nmotion challenging the plaintiff’s individual claim, which, if granted, may render the class\ncertification issue moot.”). Relying on the foregoing authorities, we conclude that the trial court did\nnot abuse its discretion in deferring the class certification decision until after a hearing on State\nFarm’s motion for summary judgment.\n\n (2) Order Staying Discovery Until After Hearing on Motion for Summary Judgment\n\n As an outgrowth to their first issue, the Plaintiffs claim that the trial court abused its\ndiscretion by issuing an order staying further discovery until after the hearing on State Farm’s motion\nfor summary judgment. In their brief to this Court and at oral argument, the Plaintiffs failed to\nillustrate how the requested discovery would assist them in responding to State Farm’s motion for\nsummary judgment. Moreover, the Plaintiffs asserted in their brief to this Court that the requested\ndiscovery was “in aid of the declaratory judgment and property damage aspects of the case, including\ndiscovery of the author of the FP7955 policy[,] prior litigation involving State Farm[,] and this form\npolicy.” In its order staying discovery, the trial court stated that the discovery requested by the\nplaintiffs would have “little, if any, bearing upon the issues raised in [State Farm’s motion for\nsummary judgment].” From our review of the record, it appears that the Plaintiffs’ requested\ndiscovery related solely to issues relevant only to the declaratory judgment class action. Therefore,\nbecause the requested class-based discovery would not have aided the Plaintiffs in their opposition\n\n\n\n 2\n Because Rule 23 of the Tennessee Rules of Civil Procedure “substantially mirrors the Federal Rules governing\nclass actions[,] . . . we draw upon [f]ederal case law as persuasive authority in our analysis. Carson v. DaimlerChrysler\nCorp., No. W 2001-03088-COA-R3-CV, 2003 W L 1618076, at *3 n.3 (Tenn. Ct. App. Mar. 19, 2003) (no perm. app.\nfiled).\n\n\n -5-\n\fto the summary judgment motion, we conclude that the trial court acted within its discretion in\nstaying discovery pending the resolution of State Farm’s motion for summary judgment.\n\n (3) Summary Judgment\n\n Finally, the Plaintiffs argue that the trial court erred in granting summary judgment. The\nPlaintiffs contend that a genuine issue of material fact exists as to whether State Farm waived or\nshould be estopped from asserting the defense that Ms. Beckwith’s claim was contractually time-\nbarred. In support of their waiver argument, the Plaintiffs assert that the contractual limitations\nprovision is an affirmative defense that, under Rules 8.03 and 12.08 of the Tennessee Rules of Civil\nProcedure, must be raised in its answer or deemed to be waived. The Plaintiffs argue that State Farm\nfailed to adequately plead this defense because, instead of specifically pleading that Ms. Beckwith\nwas barred for failure to bring her claim within one year from the date of loss, State Farm pled that\nMs. Beckwith failed to comply with conditions to coverage, as set forth in the policy.\n\n In its answer, State Farm raised the following defense:\n\n Based upon the allegations of the Complaint, one or more of the Plaintiffs failed to\n comply with conditions to coverage set forth in the policy which is incorporated in\n the Complaint. Defendants reserve, therefore, the right to argue that Plaintiffs’\n failure to comply with policy requirements, voids any coverage which may have\n otherwise existed, although Defendants vigorously dispute that any coverage exists.\n\nThe contractual limitations provision is provided under the section of the policy titled “Conditions,”\nwherein it states that “[t]he [suit against State Farm] must be started within one year after the date\nof loss or damage.”\n\n The Plaintiffs argue that, by pleading conditions to policy coverage in broad, general terms,\nState Farm failed to adequately raise the affirmative defense of the one year contractual limitations\nprovision. Rule 8.03 of the Tennessee Rules of Civil Procedure states that “a party shall set forth\naffirmatively facts in short and plain terms relied upon to constitute . . . an avoidance or affirmative\ndefense.”3 Tenn. R. Civ. P. 8.03. We are mindful of the general rule that an affirmative defense\nmust be pled in the first responsive pleading or it is waived. Steed Realty v. Oveisi, 823 S.W.2d 195,\n197 (Tenn. Ct. App. 1991). However, assuming arguendo that State Farm failed to specifically plead\nthe one year contractual limitations provision in its answer, it does not necessarily follow that the\ndefense is waived. In Sands v. State, 903 S.W.2d 297, 299 (Tenn. 1995), the Tennessee Supreme\nCourt stated that “it is well settled that failure to [specifically plead a statute of limitations defense]\ndoes not result in a waiver of the defense if the opposing party is given fair notice of the defense and\n\n\n 3\n By its terms, the list of affirmative defenses set forth in Rule 8.03 is a non-exclusive list. Although “contractual\nlimitations” is not expressly listed, the affirmative defense of statute of limitations is provided. Other potential\naffirmative defenses not listed in Rule 8.03 include conditions subsequent, non-performance of conditions precedent,\nand terms of the agreement. 3 Tenn. Practice § 8:6 (3d ed. 2000).\n\n\n -6-\n\fan opportunity to rebut it.” Id. Here, even if the Plaintiffs were not put on notice by State Farm’s\nanswer, State Farm’s memorandum in support of their motion for summary judgment, filed on\nDecember 26, 2002, clearly provided fair notice to the Plaintiffs of State Farm’s intention to assert\nthe contractual limitations provision. Considering that the summary judgment hearing was held July\n25, 2003, the Plaintiffs had sufficient opportunity to prepare for State Farm’s defense. Moreover,\nin Creed v. Valentine, 967 S.W.2d 325, 327 (Tenn. Ct. App. 1997), this Court noted that\n“‘[g]enerally speaking, a defendant moving for summary judgment may avail itself of one of two\navenues: it may negate an essential element of the nonmoving party’s claim, or it may establish an\naffirmative defense, such as the statute of limitations, that defeats the claim.’” Id. (quoting Allied\nSound, Inc. v. Neely, 909 S.W.2d 815 (Tenn. Ct. App. 1995)). Therefore, we find Ms. Beckwith’s\nwaiver argument without merit.\n\n Concluding that State Farm’s affirmative defense was properly raised, we turn to the issue\nof whether the trial court properly granted State Farm summary judgment as to Ms. Beckwith’s\nindividual claim. In her deposition testimony and in State Farm’s statement of undisputed facts, Ms.\nBeckwith concedes that, on September 11, 2000, she knew that State Farm was denying coverage\nfor the damage to her home. Ms. Beckwith filed her complaint against State Farm on September 9,\n2002, nearly two years later. Therefore, it is irrefutable that Ms. Beckwith’s claim was no longer\nviable because she failed to bring this action within one year from the date of loss.4 Thus, we affirm\nthe trial court’s order granting summary judgment as to Ms. Beckwith’s claim.\n\n With regard to Ms. Simmons’s prayer for declaratory judgment, the trial court granted\nsummary judgment in favor of State Farm because Ms. Simmons had alleged no loss, and, therefore,\nher claim was non-justiciable. The Plaintiffs argue that a declaratory judgment action is the\nappropriate device for determining Ms. Simmons’s and all other FP7955 KT policyholders’\ncontractual rights, despite the fact that none has alleged any loss or claimed to have been denied\nrights based on the policy exclusions. The Plaintiffs further argue that section 29-14-104 of the\nTennessee Code expressly authorizes the courts to construe contract rights prior to a breach5 and that\nTennessee’s rules governing class actions contemplate declaratory relief as proper.\n\n On its face, section 29-14-104 allows courts to construe contracts “either before or after there\nhas been a breach.” Tenn. Code Ann. § 29-14-104. However, courts have consistently interpreted\nthe Declaratory Judgment Act to extend only to present, actual, and non-theoretical controversies.\nMiller v. Miller, 261 S.W. 965, 966–72 (Tenn. 1924); Campbell v. Sundquist, 926 S.W.2d 250,\n256–57 (Tenn. Ct. App. 1996). In 2000, the Tennessee Supreme Court restated the limits on the role\nof the declaratory judgment as follows:\n\n 4\n In their briefs to this Court, both parties discuss in great detail the effect of Ms. Beckwith’s failure to file a\n“Proof of Loss” within sixty days of the time of damage, as required under the policy. Because the record shows that\nMs. Beckwith’s claim is clearly time-barred for failure to bring this action within the contractual limitations period, it\nis unnecessary for us to discuss the effect of Ms. Beckwith’s failure to file a “Proof of Loss.”\n\n 5\n Section 29-14-104 provides that “[a] contract may be construed either before or after there has been a breach\nthereof.” Tenn. Code Ann. § 29-14-104 (2000).\n\n\n -7-\n\f [A] declaratory judgment action cannot be used by a court to decide a theoretical\n question, render an advisory opinion which may help a party in another transaction,\n or “allay fears as to what may occur in the future[.]” Super Flea Mkt. of Chattanooga\n v. Olsen, 677 S.W.2d 449, 451 (Tenn. 1984). Thus, in order to maintain an action\n for a declaratory judgment a justiciable controversy must exist. For a controversy to\n be justiciable, a real question rather than a theoretical one must be presented and a\n legally protectable interest must be at stake. If the controversy depends upon a future\n or contingent event, or involves a theoretical or hypothetical state of facts, the\n controversy is not justiciable. If the rule were otherwise, the “courts might well be\n projected into the limitless field of advisory opinions.” Story v. Walker, 404 S.W.2d\n 803, 804 (Tenn. 1966).\n\nState v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 193 (Tenn. 2000) (citations\nomitted).\n\n In this case, by way of declaratory judgment, Ms. Simmons and the other prospective class\nplaintiffs essentially are asking this Court to determine whether the FP7955 KT policy would provide\ncoverage should her home be damaged in the future. She admittedly has never suffered any damage\nto her home and has never filed a claim with State Farm. It is beyond this Court’s power to declare,\nbased on a hypothetical statement of facts, whether the insurance policy at issue would provide\ncoverage in the event the Plaintiffs ever suffer damage to their home. To do so would amount to this\ncourt issuing an advisory opinion. Therefore, we conclude the trial court appropriately granted\nsummary judgment to State Farm as the Plaintiffs’ claim for declaratory judgment was non-\njusticiable.\n\n Conclusion\n\n For the foregoing reasons, we conclude that the trial court did not abuse its discretion in\nstaying discovery and deferring the class certification determination until after ruling on the motion\nfor summary judgment. We conclude also that the trial court’s order granting summary judgment\nto State Farm was proper. Because we have concluded that the trial court appropriately granted\nsummary judgment, we need not interpret the language of the policy exclusions. Accordingly, the\norder of the trial court is affirmed. Costs of this appeal are assessed to the Appellants, Susan\nSimmons and Corrine Beckwith, and their surety, for which execution may issue if necessary.\n\n\n\n ___________________________________\n DAVID R. FARMER, JUDGE\n\n\n\n\n -8-\n\f", "ocr": false, "opinion_id": 1055004 } ]
Court of Appeals of Tennessee
Court of Appeals of Tennessee
SA
Tennessee, TN
2,693,168
Yarbrough
2013-08-30
false
state-v-carter
Carter
State v. Carter
null
null
null
null
null
null
null
null
null
null
null
null
3
Published
null
null
[ "2013 Ohio 3754" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/2/2013/2013-ohio-3754.pdf", "author_id": 8152, "opinion_text": "[Cite as State v. Carter, 2013-Ohio-3754.]\n\n\n\n\n IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO\n\nSTATE OF OHIO :\n\n Plaintiff-Appellee : C.A. CASE NO. 25447\n\nv. : T.C. NO. 12CR915\n\nROBERT A. CARTER : (Criminal appeal from\n Common Pleas Court)\n Defendant-Appellant :\n\n :\n\n ..........\n\n OPINION\n\n Rendered on the 30th day of August , 2013.\n\n ..........\n\nAPRIL F. CAMPBELL, Atty. Reg. No. 0089541, Assistant Prosecuting Attorney, 301 W.\nThird Street, 5th Floor, Dayton, Ohio 45422\n Attorney for Plaintiff-Appellee\n\nNICHOLAS G. GOUNARIS, Atty. Reg. No. 0064527, 130 W. Second Street, Suite 2000,\nDayton, Ohio 45402\n Attorney for Defendant-Appellant\n\n ..........\n\nYARBROUGH, J. (by assignment)\n\n I. Introduction\n\f[Cite as State v. Carter, 2013-Ohio-3754.]\n {¶ 1} Defendant-appellant, Robert Carter, appeals the judgment of the\n\nMontgomery County Court of Common Pleas, following a two-day bench trial, wherein the\n\ncourt found appellant guilty of two counts of felonious assault, one count of improperly\n\ndischarging a firearm at or into a habitation, and one count of discharging a firearm on or\n\nnear a prohibited premises, all with the attendant firearm specifications.\n\n A. Facts and Procedural Background\n\n {¶ 2} The state elicited the following evidence during the two-day bench trial.\n\nOn March 19, 2012, at around 10:00 p.m., a gray or silver Chevy pulled into the driveway at\n\n711 Cleverly Road, the home of Leon Davis, Jr. Dawne Jones, who was leaving the house\n\nat the time, testified that she stopped and talked to the driver, who she identified as Carter.\n\nNo other passengers were in the car. After a brief conversation, Dawne left, and Sam Ford\n\napproached the driver’s side of the car. Sam testified that he spoke with Carter, and that\n\nCarter requested $20 that he had loaned to Sam earlier. Sam responded that he did not have\n\nthe money. Shortly thereafter, the car left. Sam testified that, although he did not perceive\n\nCarter to be angry or upset, he heard Carter say, “[L]et me go get my gun,” as Carter was\n\nleaving. Notably, Carter lived nearby.\n\n {¶ 3} Sam returned to the front porch where he had been talking with Vanessa\n\nHines and Bridgette Dawson. A few minutes later, Sam and Vanessa then left to walk over\n\nto Vanessa’s mother’s house a few blocks away. Bridgette remained sitting on the front\n\nporch. Sam and Vanessa testified that as they were walking, they saw the same car that had\n\nleft the driveway moments ago coming down the street towards them. Vanessa testified that\n\nshe could see that Carter was driving the car and that there were no other passengers. Sam\n\ninitially testified that he also could see Carter driving the car, although he later admitted that\n\f 3\n\nhe assumed it was Carter because it was the same car.\n\n {¶ 4} The car passed Sam and Vanessa. As it continued driving past 711\n\nCleverly, gunfire came from the driver’s side of the car. Approximately ten rounds were\n\nfired at the house. Sam and Vanessa testified that they could see the gunfire. Bridgette\n\nalso testified that she could see the gunfire, but stood there, frozen. Three of the bullets\n\nstruck Bridgette, wounding her left chest, left wrist, and right elbow. In addition, several of\n\nthe bullets entered the house, striking the wall and television. Leon, who was inside the\n\nhouse at the time, heard the shots and fell to the floor. He was not injured.\n\n {¶ 5} At a subsequent interview with the police, Sam and Vanessa separately\n\nidentified Carter as the shooter from a photo lineup. After Carter was taken into custody,\n\nand while the criminal proceedings were pending, Carter made several phone calls from the\n\njail in which he discussed the facts surrounding the incident, and at least on one occasion,\n\noffered money if Vanessa would change her testimony or not show up for trial.\n\n {¶ 6} Following the state’s presentation of its case, the defense called Carter’s\n\nnephew, Jamikel, as an alibi witness. Jamikel testified that Carter was at Jamikel’s house\n\non the evening of the shooting. Jamikel stated that he went downstairs to get a snack on\n\ntwo occasions, and remembered seeing Carter there watching television both times. The\n\ndefense also called Carter’s mother, Rose Carter. Rose testified that in July after the\n\nincident, Vanessa admitted to her that she could not identify Carter and so was not going to\n\ntestify. Vanessa denied ever having this conversation.\n\n {¶ 7} The trial court found Carter guilty on all counts. At sentencing, the trial\n\ncourt merged the felonious assault counts into the count of discharging a firearm on or near a\n\f 4\n\nprohibited premises. The court further merged all of the firearm specifications into the one\n\nspecification attached to the count of improperly discharging a firearm at or into a habitation.\n\n Ultimately, the court sentenced Carter to eight years in prison on each count, and ordered\n\nthe sentences to run concurrently to each other, and consecutively to the five-year prison\n\nsentence for the firearm specification, for a total prison term of 13 years. The trial court\n\nalso ordered Carter to pay court costs.\n\n B. Assignments of Error\n\n {¶ 8} Carter has timely appealed, and now raises two assignments of error:\n\n I. Whether Carter’s convictions for Counts I, II, III, and IV, are\n\n against the manifest weight of the evidence since the State failed to prove that\n\n it was Carter in the car shooting at the house.\n\n II. Whether the trial court erred by imposing court costs without\n\n informing Carter that he could have to perform community service if he failed\n\n to pay his court costs.\n\n II. Carter’s Convictions Were Not Against\n\n the Manifest Weight of the Evidence\n\n {¶ 9} In support of his first assignment of error, Carter does not contest that the\n\nelements of the crimes were satisfied. Rather, Carter raises the issue of identity, and argues\n\nthat the trial court’s finding that he was the shooter is against the manifest weight of the\n\nevidence.\n\n {¶ 10} When reviewing a manifest weight claim,\n\n The court, reviewing the entire record, weighs the evidence and all\n\f 5\n\n reasonable inferences, considers the credibility of witnesses and determines\n\n whether in resolving conflicts in the evidence, the jury clearly lost its way and\n\n created such a manifest miscarriage of justice that the conviction must be\n\n reversed and a new trial ordered. The discretionary power to grant a new\n\n trial should be exercised only in the exceptional case in which the evidence\n\n weighs heavily against the conviction. State v. Lang, 129 Ohio St.3d 512,\n\n 2011-Ohio-4215, 954 N.E.2d 596, ¶ 220, quoting State v. Thompkins, 78\n\n Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).\n\n {¶ 11} Because the fact finder has the opportunity to see and hear the witnesses,\n\nsubstantial deference must be extended to its determinations of credibility. State v. Lawson,\n\n2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The trier of fact\n\nmay believe all, some, or none of what a witness says. State v. Antill, 176 Ohio St. 61, 67,\n\n197 N.E.2d 548 (1964).\n\n {¶ 12} Here, we cannot say that this is the exceptional case where the evidence\n\nweighs heavily against the conviction. Vanessa expressly testified that she saw Carter\n\ndriving the car at the time of the shooting. Several witnesses also testified that Carter was\n\nin the driver’s seat of the same car while it was parked at 711 Cleverly, moments before the\n\nshooting. In addition, Sam testified that he heard Carter say he was going to go get his gun.\n\n Finally, Carter’s own statements on the phone calls from the jail discussing the incident and\n\noffering money if Vanessa will either change her story or not testify is evidence of his\n\nconsciousness of his guilt. The trial court was in the best position to determine the\n\nwitnesses’ credibility, and reviewing the record as a whole, we conclude that the court did\n\f 6\n\nnot lose its way merely because it chose to believe the state’s witnesses over those of the\n\ndefense. Accordingly, Carter’s first assignment of error is overruled.\n\n III. The Trial Court Failed to Notify Carter of the Possibility of\n\n Community Service if He Failed to Pay Court Costs\n\n {¶ 13} As his second assignment, Carter argues that the trial court erred by\n\nimposing court costs without informing him that he may be required to perform community\n\nservice if he fails to pay, as required by the version of R.C. 2947.23(A)(1) in effect at the\n\ntime of his sentencing. The state concedes this error, and our review of the transcript from\n\nthe sentencing hearing confirms that Carter was not notified of the possible imposition of\n\ncommunity service. Accordingly, Carter’s second assignment of error is sustained.\n\n {¶ 14} Carter requests that we remand this matter to the trial court for proper\n\nimposition of court costs. Recently, however, in similar circumstances we have modified\n\nthe defendant’s sentence to eliminate any possibility that the defendant can be mandated to\n\nperform community service in lieu of payment of court costs. See State v. Haney, 2d Dist.\n\nMontgomery No. 25344, 2013-Ohio-1924, ¶ 21; State v. Veal, 2d Dist. Montgomery No.\n\n25253, 2013-Ohio-1577, ¶ 20. Therefore, we modify Carter’s sentence to remove the\n\npossibility that Carter will be required to perform community service should he fail to pay\n\ncourt costs. As modified, the judgment of the Montgomery County Court of Common Pleas\n\nwill be affirmed.\n\n ..........\n\nHALL, J. and WELBAUM, J., concur.\n\n(Hon. Stephen A. Yarbrough, Sixth District Court of Appeals, sitting by assignment of the\nChief Justice of the Supreme Court of Ohio).\n\f 7\n\n\nCopies mailed to:\n\nApril F. Campbell\nNicholas G. Gounaris\nHon. Dennis J. Adkins\n\f", "ocr": false, "opinion_id": 2693168 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
1,062,717
null
2010-04-27
false
david-b-briggman-v-commonwealth-of-virginia-depart
null
David B. Briggman v. Commonwealth of Virginia, Department of Social Services, etc.
null
null
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/1911094.pdf", "author_id": null, "opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\nPresent: Judges McClanahan, Haley and Senior Judge Willis\n\n\nDAVID B. BRIGGMAN\n MEMORANDUM OPINION *\nv. Record No. 1911-09-4 PER CURIAM\n APRIL 27, 2010\nCOMMONWEALTH OF VIRGINIA,\n DEPARTMENT OF SOCIAL SERVICES,\n DIVISION OF CHILD SUPPORT ENFORCEMENT\n ex rel. CHRISTINA R. PITTMAN\n\n\n FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY\n J. Howe Brown, Judge Designate\n\n (David B. Briggman, pro se, on brief).\n\n (Kenneth T. Cuccinelli, II, Attorney General; Craig M. Burshem,\n Senior Assistant Attorney General; Beth J. Edwards, Regional Senior\n Assistant Attorney General; Nancy J. Crawford, Regional Senior\n Assistant Attorney General, on brief), for appellee.\n\n\n David B. Briggman (father) appeals an order holding him in contempt for violating a child\n\nsupport order. Father lists several questions presented related to an order dated April 4, 2001:\n\n(1) whether the trial court entered a valid judgment when the Commonwealth failed to participate in\n\nfather’s appeal at the circuit court level; (2) whether the trial court erred by imposing an improper\n\npurge clause and converting a criminal proceeding into a civil proceeding; (3) whether the trial court\n\nerred by assuming subject matter jurisdiction when father failed to pay the $25,000 appeal bond;\n\nand (4) whether the trial court erred by failing to grant him a de novo hearing pursuant to Code\n\n§ 16.1-136. Father further argues (1) the Code, as it existed prior to July 1, 2008, prohibited\n\nnon-attorney employees of the Division of Child Support Enforcement (DCSE) from signing and\n\n\n *\n Pursuant to Code § 17.1-413, this opinion is not designated for publication.\n\ffiling pleadings which contained legal arguments and/or conclusions; (2) orders obtained by\n\npleadings signed by non-attorneys are void ab initio and the trial court does not have subject matter\n\njurisdiction to hear any proceeding brought by non-attorneys; (3) the application of the 2008\n\namendments to cases adjudicated prior to July 1, 2008 constitute a “bill of attainder” and violate the\n\nUnited States and Virginia constitutions; (4) the trial court erred by proceeding with an amended\n\npleading by DCSE, when DCSE did not obtain leave of court to file the amended pleading and no\n\none objected to the amended pleading at trial; (5) the “Standard Payment Plan Agreement,” entered\n\ninto by father, did not contain an “intelligent waiver” of any further notice of a driver’s license\n\nsuspension; (6) DCSE was required to petition the juvenile court under Code § 63.2-1937 for a\n\nsuspension of father’s driver’s license; (7) a circuit court judge, who previously recused herself,\n\nerred by entering an amended order ex parte without notice to father; and (8) DCSE’s ex parte\n\nfilings are invalid because father had no notice of such filings. DCSE argues that (1) father’s appeal\n\nis moot because he paid his child support arrearage in full and the child is emancipated; (2) father\n\nfailed to meet the requirements of Rules 5A:20 and 5A:25; therefore, his questions presented are\n\nwaived; and (3) father’s appeal should be dismissed based on the doctrines of res judicata, collateral\n\nestoppel, and the law of the case because father has previously litigated all defenses he now\n\nattempts to raise in the case at bar. Upon reviewing the record and briefs of the parties, we\n\nconclude that this appeal is moot and dismiss the appeal. 1\n\n BACKGROUND\n\n Father owed child support to Christina R. Pittman (mother) for their daughter. Their\n\ndaughter became emancipated in 2002.\n\n\n\n\n 1\n Because we dismiss the case as being moot, father’s questions presented and the two\nadditional arguments raised by DCSE will not be considered.\n\n -2-\n\f On April 8, 2008, DCSE filed a motion for show cause summons, alleging that father had\n\nnot complied with a previous order in which the trial court held that father was to pay $519 per\n\nmonth toward child support arrears. On October 9, 2008, the JDR court sustained father’s demurrer\n\nto the show cause motion. 2 The JDR court dismissed DCSE’s rule for show cause. DCSE appealed\n\nto the trial court.\n\n On July 27, 2009, the trial court heard the parties’ evidence and argument. On July 31,\n\n2009, the trial court entered an order finding father in civil contempt. Father’s arrearages totaled\n\n$13,534.85 through July 27, 2009. Father was remanded to jail for twelve months, with a purge\n\nclause of $13,534.85 if paid before August 5, 2009, or $13,534.85 plus interest if paid after August\n\n5, 2009. On July 31, 2009, father purged himself by paying the amount owed in full and was\n\nreleased from jail. The court entered an order on August 10, 2009, which released the purge funds\n\nto DCSE.\n\n ANALYSIS\n\n DCSE argues that father’s appeal is moot because father paid all of the child support arrears\n\nin full on July 31, 2009. DCSE contends the matter is resolved.\n\n “The duty of this court . . . is to decide actual controversies by a judgment which can be\n\ncarried into effect, and not to give opinions upon moot questions or abstract propositions, or to\n\ndeclare principles or rules of law which cannot affect the matter in issue in the case before it.”\n\nHankins v. Town of Virginia Beach, 182 Va. 642, 644, 29 S.E.2d 831, 832 (1944). See also\n\nHallmark v. Personnel Agency, Inc. v. Jones, 207 Va. 968, 971, 154 S.E.2d 5, 7 (1967) (citations\n\nomitted).\n\n\n\n\n 2\n The JDR court entered the order on December 8, 2008, nunc pro tunc to October 17, 2008.\n -3-\n\f “[M]ootness has two aspects: ‘when the issues presented are no longer “live” or the\n\nparties lack a legally cognizable interest in the outcome.’” United States Parole Comm’n v.\n\nGeraghty, 445 U.S. 388, 396 (1980) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)).\n\n Since father paid the contested amount in full, there are no “live” matters. The child is\n\nemancipated, and no further sums are owed. Father is not entitled to restitution for child support\n\nhe previously paid. Wilson v. Wilson, 25 Va. App. 752, 760, 492 S.E.2d 495, 499 (1997) (citing\n\nReid v. Reid, 245 Va. 409, 415, 429 S.E.2d 208, 211 (1993) (holding that the trial court had no\n\nstatutory or inherent authority to order restitution of spousal support previously paid)). See also\n\nNordstrom v. Nordstrom, 50 Va. App. 257, 266-67, 649 S.E.2d 200, 205 (2007).\n\n Accordingly, the appeal is dismissed. See Hallmark, 207 Va. at 971, 154 S.E.2d at 7\n\n(dismissing the case as moot); Hankins, 182 Va. at 644, 29 S.E.2d at 832 (same).\n\n Dismissed.\n\n\n\n\n -4-\n\f", "ocr": false, "opinion_id": 1062717 } ]
Court of Appeals of Virginia
Court of Appeals of Virginia
SA
Virginia, VA
2,704,163
Gallagher
2011-10-27
false
state-v-grady
Grady
State v. Grady
null
null
null
null
null
null
null
null
null
null
null
null
5
Published
null
null
[ "2011 Ohio 5503" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-5503.pdf", "author_id": null, "opinion_text": "[Cite as State v. Grady, 2011-Ohio-5503.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n Nos. 96523, 96524, and 96525\n\n\n\n\n STATE OF OHIO\n PLAINTIFF-APPELLEE\n\n vs.\n\n DEMETRIUS GRADY\n DEFENDANT-APPELLANT\n\n\n\n\n JUDGMENT:\n AFFIRMED\n\n\n Criminal Appeal from the\n Cuyahoga County Court of Common Pleas\n Case Nos. CR-378708, CR-363870, and CR-378707\n\n BEFORE: E. Gallagher, J., S. Gallagher, P.J., and Keough, J.\n\n RELEASED AND JOURNALIZED: October 27, 2011\n\f 2\n\n\n ATTORNEY FOR APPELLANT\n\nRussell S. Bensing\n1350 Standard Building\n1370 Ontario Street\nCleveland, Ohio 44113\n\n\nATTORNEYS FOR APPELLEE\n\nWilliam D. Mason\nCuyahoga County Prosecutor\n\nBY: Katherine Mullin\nAssistant County Prosecutor\nThe Justice Center, 9th Floor\n1200 Ontario Street\nCleveland, Ohio 44113\n\n\n\nEILEEN A. GALLAGHER, J.:\n\n {¶ 1} This is an accelerated appeal brought pursuant to App.R. 11.1 and\n\nLoc.App.R. 11.1.\n\n {¶ 2} Demetrius Grady appeals from the trial court’s denial of his motion to\n\nwithdraw his guilty pleas. Grady argues that the trial court erred in denying his motion\n\nto withdraw his guilty pleas because he was not informed of the postrelease control\n\nrequirements and the potential penalties for violating postrelease control. For the\n\nfollowing reasons, we affirm the decision of the trial court.\n\n {¶ 3} Cuyahoga County grand juries indicted Grady on several criminal cases in\n\f 3\n\n1998 and 1999. As part of a plea agreement with the state, Grady pleaded guilty to\n\nfelonious assault with a gun specification (CR-363870); drug possession and failure to\n\ncomply with the order of a police officer (CR-364232); drug possession (CR-377606);\n\nfelonious assault with peace officer and firearm specifications (CR-378707); and\n\nfelonious assault (CR-378708). The trial court sentenced Grady to a total of 15 years of\n\nincarceration.1 Grady did not appeal his conviction or sentence.\n\n {¶ 4} The sentencing entries neglected to impose any period of postrelease\n\ncontrol. After learning that he would be resentenced to correct this error, Grady filed a\n\nmotion to withdraw his guilty pleas in all five cases on April 23, 2009. At the May 27,\n\n2009 resentencing hearing, the trial court imposed Grady’s original sentence and added\n\nfive years of postrelease control in all five cases. The court orally denied Grady’s\n\nmotion to withdraw his pleas, finding it to be untimely. See State v. Grady, Cuyahoga\n\nApp. No. 93548, 2010-Ohio-4667.\n\n {¶ 5} Grady appealed, challenging the denial of his motion to withdraw his\n\nguilty pleas and the imposition of five years of postrelease control on each of his cases.\n\nThis court could not address any assigned error relating to Grady’s motion to withdraw\n\nhis guilty pleas because it determined that there was no final, appealable order that\n\n 1\n Grady’s prison sentence consisted of four years in CR-363870; one year in\nCR-364232; one year in CR-377606; eight years in CR-378707; and three years in\nCR-378708. The four, eight, and three-year sentences were imposed consecutively\nto each other, but concurrently to the remaining terms of incarceration. The\nsentences in case numbers CR-364232 and CR-377606 have long ago been\ncompleted and are not part of this appeal.\n\f 4\n\ndenied his motion. See Grady. More specifically, because no journal entry reflected\n\nthe denial of Grady’s motion to withdraw his guilty pleas, there was no final appealable\n\norder. Id. Additionally, this court found error with the trial court’s imposition of five\n\nyears of postrelease control on all but case CR-378707, finding the sentences contrary to\n\nlaw. Id. As such, this court dismissed in part, reversed in part, and remanded the\n\nmatter for further proceedings. Id.\n\n {¶ 6} On remand, the trial court correctly advised Grady of the following terms\n\nof postrelease control: CR-363870 and CR-378708: mandatory postrelease control of\n\nthree years; CR-364232 and CR-377606: discretionary postrelease control of three years,\n\nsentence has been served, sentence expired. Additionally, on February 10, 2011, the\n\ntrial court denied Grady’s motion to withdraw his guilty pleas, finding that his motion\n\nwas barred by the doctrine of res judicata and that Grady failed to show prejudice.\n\n {¶ 7} Grady appeals, raising a single assignment of error:\n\n “The trial court erred, in violation of Defendant’s right to Due Process of Law\n under the 14th Amendment to the United States Constitution, in denying\n Defendant’s Motion to Withdraw his plea.”\n\n {¶ 8} “In State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, 906 N.E.2d\n\n422, the Ohio Supreme Court held that a motion to withdraw a guilty plea filed after the\n\nimposition of a void sentence must be considered as a presentence motion under Crim.R.\n\n32.1 and be freely and liberally granted. [In Boswell,] the court remanded the matter to\n\nthe trial court to ensure the consideration of the motion to withdraw as a presentence\n\f 5\n\nmotion. However, the court did not address the impact of res judicata on issues raised\n\nin such a motion.” State v. Fountain, Cuyahoga App. Nos. 92772 and 92874,\n\n2010-Ohio-1202.\n\n {¶ 9} In Fountain, this court determined that a defendant’s failure to raise the\n\nissue of postrelease control on direct appeal barred the raising of the issue in a\n\nsubsequent motion to withdraw a guilty plea. In determining that the doctrine of res\n\njudicata applied, the court explained:\n\n “It is well recognized that the doctrine of res judicata bars claims that were raised\n or could have been raised on direct appeal. State v. Davis, 119 Ohio St.3d 422,\n 2008-Ohio-4608, 894 N.E.2d 1221. Consistent therewith, this court has\n consistently recognized that the doctrine of res judicata bars all claims raised in a\n Crim.R. 32.1 motion that were raised or could have been raised in a prior\n proceeding, including a direct appeal. State v. McGee, Cuyahoga App. No.\n 91638, 2009-Ohio-3374; State v. Pickens, Cuyahoga App. No. 91924,\n 2009-Ohio-1791; State v. Gaston, Cuyahoga App. No. 82628, 2003-Ohio-5825;\n see, also, State v. Coats, Mercer App. Nos. 10-09-04 and 10-09-05,\n 2009-Ohio-3534. Indeed, the right to withdraw a plea is not absolute. Coats,\n supra. Applying these same principles, we find that the application of res\n judicata to a motion to withdraw is not impacted by a void sentence. Coats,\n supra; McGee, supra.”\n\nSee, also, State v. Bell, Cuyahoga App. No. 95719, 2011-Ohio-1965.\n\n {¶ 10} In this matter, Grady contends that his plea was not voluntary because the\n\ntrial court failed to inform him of postrelease control requirements and potential\n\npenalties for violations of postrelease control. However, Grady could have raised that\n\nissue on direct appeal; an action he chose not to undertake. Grady first raised this issue\n\nyears after the imposition of his sentence and well after the time for a direct appeal had\n\f 6\n\nexpired. Therefore, in accordance with Bell, and Fountain, Grady’s motion is barred by\n\nres judicata and we overrule his sole assignment of error.\n\n {¶ 11} The judgment of the trial court is affirmed.\n\n It is ordered that appellee recover of appellant costs herein taxed.\n\n The court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate issue out of this court directing the common\n\npleas court to carry this judgment into execution. The defendant’s conviction having\n\nbeen affirmed, any bail pending appeal is terminated. Case remanded to the trial court\n\nfor execution of sentence.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of\n\nthe Rules of Appellate Procedure.\n\n\n\nEILEEN A. GALLAGHER, JUDGE\n\nSEAN C. GALLAGHER, P.J., and\nKATHLEEN ANN KEOUGH, J., CONCUR\n\f", "ocr": false, "opinion_id": 2704163 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
2,691,353
Brown, Cupp, Lanzinger, Lundberg, O'Connor, O'Donnell, Pfeifer, Stratton
2010-12-21
false
disciplinary-counsel-v-pfundstein
Pfundstein
Disciplinary Counsel v. Pfundstein
Disciplinary Counsel v. Pfundstein
Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger, Senior Assistant Disciplinary Counsel, for relator., Koblentz & Penvose, L.L.C., Richard S. Koblentz, and Bryan L. Penvose, for respondent.
null
null
null
null
null
null
null
Submitted October 12, 2010
null
null
2
Published
null
<parties data-order="0" data-type="parties" id="b193-9"> Disciplinary Counsel <em> v. </em> Pfundstein. </parties><br><p data-order="1" data-type="citation" id="b193-10"> [Cite as <em> Disciplinary Counsel v. Pfundstein, </em> 128 Ohio St.3d 61, 2010-Ohio-6150.] </p><br><docketnumber data-order="2" data-type="docketnumber" id="b193-13"> (No. 2010-1243 </docketnumber><otherdate data-order="3" data-type="otherdate" id="As6"> Submitted October 12, 2010 </otherdate><decisiondate data-order="4" data-type="decisiondate" id="AALJ"> Decided December 21, 2010.) </decisiondate>
[ "2010 Ohio 6150", "128 Ohio St. 3d 61" ]
[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": 10, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2010/2010-ohio-6150.pdf", "author_id": null, "opinion_text": "[Cite as Disciplinary Counsel v. Pfundstein, 128 Ohio St.3d 61, 2010-Ohio-6150.]\n\n\n\n\n DISCIPLINARY COUNSEL v. PFUNDSTEIN.\n [Cite as Disciplinary Counsel v. Pfundstein,\n 128 Ohio St.3d 61, 2010-Ohio-6150.]\nAttorneys — Misconduct — Multiple violations of the Rules of Professional\n Conduct — Deference to panel’s credibility determinations — Stayed one-\n year license suspension.\n(No. 2010-1243 — Submitted October 12, 2010 — Decided December 21, 2010.)\n ON CERTIFIED REPORT by the Board of Commissioners on Grievances and\n Discipline of the Supreme Court, No. 09-076.\n __________________\n Per Curiam.\n {¶ 1} Respondent, Joseph Anthony Pfundstein of Pepper Pike, Ohio,\nAttorney Registration No. 0056167, was admitted to the practice of law in Ohio in\n1991. The charges here stem from respondent’s representation of Phillip Einhorn\nin two separate matters: collection of a legal-malpractice judgment and litigation\nof an employment-discrimination claim against Einhorn’s former employer.\nRelator, Disciplinary Counsel, charged respondent with multiple violations of the\nRules of Professional Conduct, in each matter alleging that respondent had\nmisrepresented the status of the litigation to his client, had failed to act with\nreasonable diligence and promptness in representing his client, had failed to keep\nhis client reasonably informed of the status of the case, had failed to respond\npromptly to his client’s reasonable requests for information, and had engaged in\nconduct prejudicial to the administration of justice and adversely reflecting on his\nfitness to practice law.\n {¶ 2} The parties stipulated that respondent’s conduct violated\nProf.Cond.R. 1.4(a)(4) (requiring a lawyer to comply as soon as practicable with\n\f SUPREME COURT OF OHIO\n\n\n\n\nreasonable requests for information from the client), 8.4(c) (prohibiting a lawyer\nfrom engaging in conduct involving dishonesty, fraud, deceit, or\nmisrepresentation), and 8.4(h) (prohibiting a lawyer from engaging in conduct\nthat adversely reflects upon the lawyer’s fitness to practice law), but disputed\nwhether that conduct also violated 1.3 (requiring a lawyer to act with reasonable\ndiligence in representing a client), 1.4(a)(3) (requiring a lawyer to keep the client\nreasonably informed about the status of legal matters), and 8.4(d) (prohibiting\nconduct that is prejudicial to the administration of justice).\n {¶ 3} Based on the submitted stipulations and other evidence, a panel of\nboard members found clear and convincing evidence that respondent had violated\nProf.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), and 8.4(h), concluded that\ninsufficient evidence supported the allegations that respondent had violated\n8.4(d), and recommended that respondent be suspended from the practice of law\nfor 12 months, all stayed on conditions.\n {¶ 4} The Board of Commissioners on Grievances and Discipline\nadopted the panel’s findings of fact, conclusions of law, and recommended\nsanction. Relator agrees with the board’s recommendation of a 12-month\nsuspension but urges that only six months of that suspension be stayed on\nconditions.\n {¶ 5} We overrule relator’s objections, adopt the board’s findings of fact\nand conclusions of law, and accept its recommendation that we suspend\nrespondent from the practice of law for one year, with the entire suspension\nstayed on the conditions that respondent (1) comply with his Ohio Lawyers\nAssistance Program (“OLAP”) contract, (2) accept the treatment recommended by\nOLAP and his psychologist during the period of suspension, (3) remain on\nprobation — monitored by relator — during the term of his three-year OLAP\ncontract, and (4) pay the costs of the disciplinary proceedings.\n Misconduct\n\n\n\n\n 2\n\f January Term, 2010\n\n\n\n\n Count I — Legal-malpractice judgment collection\n {¶ 6} In 1998, Phillip Einhorn hired respondent to represent him in a\nlegal-malpractice claim. In April 2001, respondent obtained a $3,906.52\njudgment against the attorney in favor of Einhorn. Respondent then agreed to\npursue collection of the judgment, but by 2007 had done little to collect on it, and\nit had not been satisfied.\n {¶ 7} Einhorn made multiple telephone and e-mail requests to\nrespondent for the status of the collection effort, but respondent failed to timely\nrespond. Further, he falsely advised Einhorn in July 2007 that he “was waiting to\nget [the attorney] into court” and that he had “been waiting on a court date to\nfinish [his] update.” In August 2007, he misrepresented that he had been “waiting\n[on the] Garfield [Heights Municipal] Court [for] a date for a show cause motion\nthat should be coming in [about] a month,” and in January 2008, he falsely\nadvised that he “was waiting for a Show Cause date for [the attorney’s] failure to\nappear at a recent hearing.” In fact, respondent had not been involved in any\nlitigation involving the attorney at the time of these statements.\n {¶ 8} In addition, although respondent had advised Einhorn that he\n“found out where [the attorney] works” and was “trying to garnish her wages,” in\nreality, respondent had done neither. In fact, the attorney has been indefinitely\nsuspended from the practice of law since 2002. Einhorn finally terminated the\nrepresentation in August 2008.\n {¶ 9} We accept the board’s findings that respondent violated\nProf.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), and 8.4(h). We also agree with the\nboard’s conclusion that clear and convincing evidence does not support the\nallegations that respondent violated Prof.Cond.R. 8.4(d) with regard to this\nconduct, and we therefore dismiss that part of the complaint.\n Count II — The employment-discrimination claim\n\n\n\n\n 3\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 10} In late 1999 or early 2000, Einhorn also hired respondent to\nrepresent him in an employment-discrimination claim against his former\nemployer. Respondent filed a complaint in May 2000, but Einhorn subsequently\nfailed to cooperate in discovery, and as a result, the trial court ordered him to\nrespond to discovery or face sanctions, including dismissal with prejudice.\nBecause Einhorn did not provide the requested documents, respondent voluntarily\ndismissed the case in February 2001 to preserve the claim. After dismissing the\nlawsuit, however, respondent did not perform any other legal work on this matter.\n {¶ 11} Nonetheless, in 2007 and 2008, respondent misrepresented the\nstatus of the case, suggesting that the claim remained pending. In an August 14,\n2007 e-mail, for example, respondent advised Einhorn that the litigation remained\n“kind of in a holding pattern[,] nothing reall[y] going on but should be picking up\nin a couple of weeks. By any chance are you coming in to Cleveland in the event\nof depositions or anything like this[?]” When Einhorn inquired, “[W]hat type of\ndepositions are we talking about and for what,” respondent falsely represented\nthat he was “trying to figure out what kind of depo[sition] they want” and\nsuggested that a teleconference might be possible. And when Einhorn sought to\nconfirm that his deposition would be held in Cleveland on September 24, 2007,\nrespondent lied, writing that he could not confirm the date because he and the\nattorney for the former employer both had other commitments that day. Einhorn\nrequested an update on the litigation on November 28, 2007, but respondent did\nnot provide information until January 2, 2008, and only then to misrepresent that\nhe had been “trying to figure out a way to get [the client’s] depo[sition] without\n[his] having to come to town.” Respondent also sent an e-mail on May 25, 2008,\nfalsely stating that he had already mailed the update requested by Einhorn and\nthat he would send a second copy.\n {¶ 12} At the hearing before the panel, respondent admitted that no legal\naction had been pending and no depositions had been planned, and he testified\n\n\n\n\n 4\n\f January Term, 2010\n\n\n\n\nthat he had sent the false e-mails to keep Einhorn from filing a grievance against\nhim and to “buy [himself] time” to figure out how to deal with the situation.\nNonetheless, Einhorn terminated respondent in August 2008.\n {¶ 13} We accept the board’s findings that respondent violated\nProf.Cond.R. 1.3, 1.4(a)(3), 1.4(a)(4), 8.4(c), and 8.4(h). We also agree with the\nboard’s conclusion that clear and convincing evidence does not support the\nallegations that respondent violated Prof.Cond.R. 8.4(d) with regard to this\nconduct, and we therefore dismiss that part of the complaint.\n Sanction\n {¶ 14} When imposing sanctions for attorney misconduct, we consider a\nnumber of factors, including the duties the lawyer violated, the lawyer’s mental\nstate, and the sanctions imposed in similar cases. Stark Cty. Bar Assn. v.\nButtacavoli, 96 Ohio St.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In\nmaking our determination, we weigh evidence of the aggravating and mitigating\nfactors listed in Section 10 of the Rules and Regulations Governing Procedure on\nComplaints and Hearings Before the Board of Commissioners on Grievances and\nDiscipline (“BCGD Proc.Reg.”). Disciplinary Counsel v. Broeren, 115 Ohio\nSt.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary\ncase is unique, we are not limited to the factors specified in the rule but may take\ninto account “all relevant factors” in determining what sanction to impose.\nBCGD Proc.Reg. 10(B).\n Aggravating Factors\n {¶ 15} In aggravation, the board found that respondent had engaged in a\npattern of misconduct and had committed multiple offenses.\n Mitigating Factors\n {¶ 16} In mitigation, the board found that respondent had no prior\ndisciplinary record, displayed a cooperative attitude and remorse during the\ndisciplinary proceedings, and had submitted over 20 letters attesting to his good\n\n\n\n 5\n\f SUPREME COURT OF OHIO\n\n\n\n\ncharacter and reputation as well as to his community and legal service spanning\nhis 18 years of practice. BCGD Proc.Reg. 10(B)(2)(a) and (e). The board noted\nthat Bedford Municipal Court Judge Brian J. Melling, who employs respondent as\na part-time magistrate, testified to respondent’s competence and good character\nand that Paul A. Caimi, the associate director of OLAP and respondent’s monitor,\ntestified that respondent had been complying with his three-year OLAP contract\nand poses no threat to the public.\n {¶ 17} The board further found that relator did not show that respondent’s\nmisconduct had harmed Einhorn, and it also found that respondent proved that he\nsuffers from a mental disability within the meaning of BCGD Proc.Reg.\n10(B)(2)(g). Relying on the testimony of respondent’s psychologist, Dr. Roger\nNeil Hess, the board concluded that respondent had been diagnosed with\ndysthymia, which is a form of depression, that this mental disability contributed to\ncause the misconduct, that respondent had undergone a sustained period of\nsuccessful treatment, and that he could return to competent, ethical professional\npractice.\n {¶ 18} Relator objects to the board’s conclusions, contends that the\nevidence does not support the board’s decision to consider respondent’s mental\ndisability mitigating, and attacks the credibility of Dr. Hess’s determination that\nrespondent’s dysthymia contributed to his dishonesty. In particular, relator notes\nthat the Diagnostic and Statistical Manual of Mental Disorder (“DSMMD”) does\nnot indicate that dysthymia causes dishonesty. Relator further asserts that Dr.\nHess’s testimony reveals a lack of knowledge of the facts of respondent’s\nmisconduct, emphasizing that Dr. Hess testified that the misconduct had taken\nplace in 2001 and initially stated on cross-examination that there were only two\ninstances of dishonesty.\n {¶ 19} We explained in Disciplinary Counsel v. Heiland, 116 Ohio St.3d\n521, 2008-Ohio-91, 880 N.E.2d 467, ¶ 39, that “[w]e will defer to a panel’s\n\n\n\n\n 6\n\f January Term, 2010\n\n\n\n\ncredibility determination in our independent review of discipline cases unless the\nrecord weighs heavily against those determinations.”\n {¶ 20} While Dr. Hess admitted that the DSMMD does not indicate that\ndysthymia causes dishonesty, he testified that other literature as well as his\neducation, experience, and contact with respondent supported his professional\nopinion that dysthymia could cause a person to be dishonest when he or she has\ndifficulty dealing with people, and he opined that respondent’s dysthymia\ncontributed to cause the misconduct that occurred in this case. In addition, the\nboard noted that relator produced no evidence to rebut Dr. Hess’s opinion that\nrespondent’s dysthymia contributed to respondent’s dishonesty.\n {¶ 21} Further, Dr. Hess testified that he understood that respondent had\n“informed Mr. Einhorn that [respondent] had taken certain actions * * * and that\nthose were not true statements” and that there may have been “more than just two\ntimes that [respondent] was dishonest about those two different legal matters.”\nDr. Hess’s confusion over the date of the misconduct does not show his ignorance\nof the history of the misconduct at issue. He testified that respondent had been\nreferred to him by OLAP and had been open and candid during their frequent\ntherapy sessions.\n {¶ 22} Relator’s arguments that the board erred in relying on Caimi’s\ntestimony that respondent’s mental disorder had contributed to his misconduct\nand its assertions that respondent’s “dishonesty is not consistent with what\ncommon sense tells us a person * * * acting in a cloud of depression would be\nable to do” and that the supposed depression is “inconsistent with his abilities to\nfunction normally and successfully in all other areas of his life at the same time”\nsimilarly attack the credibility of the evidence. (Emphasis sic.) However, relator\nfailed to object to Caimi’s testimony and points to no evidence in the record\ncontradicting Dr. Hess’s statement that respondent’s dysthymia could manifest\nitself in some contexts but not in others.\n\n\n\n 7\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 23} Accordingly, relator has not shown that the record weighs heavily\nagainst the panel’s credibility determinations, and we accept the board’s findings\nregarding the aggravating and mitigating factors in this case.\n {¶ 24} The parties agree that a suspension from the practice of law for one\nyear, stayed on conditions, is the appropriate sanction in this case, but relator\nurges in its objections that an actual suspension is necessary based on\nrespondent’s pattern of misconduct involving dishonesty.\n {¶ 25} While relator is correct that “[d]ishonest conduct on the part of an\nattorney generally warrants an actual suspension from the practice of law,”\nDisciplinary Counsel v. Rooney, 110 Ohio St.3d 349, 2006-Ohio-4576, 853\nN.E.2d 663, ¶ 12, we have explained that the type of mitigating evidence\nintroduced in this case can justify imposing a lesser sanction.\n {¶ 26} In Disciplinary Counsel v. Kimmins, 123 Ohio St.3d 207, 2009-\nOhio-4943, 915 N.E.2d 330, we determined that mitigating evidence that the\nattorney had no prior disciplinary record, had proven his good character and\nreputation, had acted without a selfish motive, and had fully cooperated with the\ndisciplinary process warranted staying the one-year suspension imposed,\nnotwithstanding the attorney’s dishonesty, misuse of the client’s confidential\ninformation, and failure to protect the client’s property. Id. at ¶ 18, 22.\n {¶ 27} In Dayton Bar Assn. v. Ellison, 118 Ohio St.3d 128, 2008-Ohio-\n1808, 886 N.E.2d 836, the attorney’s negligence resulted in the dismissal of the\nclient’s employment-discrimination claim, and when the client contacted the\nattorney to check on the status of her claim, the attorney falsely stated that she did\nnot know anything and failed to inform the client of the court’s action until more\nthan six months after the claim had been dismissed. Id. at ¶ 8-9. Noting that “we\nhave imposed a stayed suspension despite the dishonesty where sufficient\nmitigating circumstances are present,” id. at ¶ 13, we imposed a one-year\nsuspension, stayed on conditions, because the attorney provided an important\n\n\n\n\n 8\n\f January Term, 2010\n\n\n\n\nservice to the community, had practiced for 27 years with only a 20-year-old\npublic reprimand on her disciplinary record, had earned the respect of her fellow\npractitioners, had cooperated fully in the disciplinary process, and had\nacknowledged her wrongdoing and shown remorse. Id. at ¶ 14-16.\n {¶ 28} Similarly, in Disciplinary Counsel v. Fumich, 116 Ohio St.3d 257,\n2007-Ohio-6040, 878 N.E.2d 6, the attorney filed a medical-malpractice claim on\nbehalf of the estate of the victim, but failed to comply with the trial court’s case-\nmanagement order or to oppose the defendant’s motion for summary judgment,\nresulting in the dismissal of the complaint. Two years later, after a client inquired\nabout the status of the case, the attorney claimed to be negotiating a settlement for\nthe medical-malpractice claim without revealing that that claim had been\ndismissed. The attorney then deposited his personal funds into his trust account\nand wrote the client a check for $16,000. Notwithstanding this dishonesty, we\ndetermined that mitigating evidence that the attorney had no prior disciplinary\nrecord, cooperated fully in the disciplinary process, accepted responsibility for his\nwrongful conduct, submitted letters attesting to his reputation, professionalism,\nand competence, and made restitution to the client weighed in favor of a one-year\nsuspension, conditionally stayed. Id. at ¶ 11, 18.\n {¶ 29} We have explained that “ ‘in determining the appropriate length of\nthe suspension and any attendant conditions, we must recognize that the primary\npurpose of disciplinary sanctions is not to punish the offender, but to protect the\npublic.’ ” Fumich at ¶ 17, quoting Disciplinary Counsel v. O’Neill, 103 Ohio\nSt.3d 204, 2004-Ohio-4704, 815 N.E.2d 286, ¶ 53. That purpose is served by\nsuspending respondent from the practice of law for one year, with the entire\nsuspension stayed on conditions. Relator did not show that Einhorn suffered any\nharm, while respondent has no prior disciplinary record, cooperated fully in the\ninvestigation of his misconduct, acknowledged his wrongdoing, and demonstrated\nhis good character. Further, the evidence establishes that respondent’s mental\n\n\n\n 9\n\f SUPREME COURT OF OHIO\n\n\n\n\ndisability contributed to cause his misconduct and that continued successful\ntreatment and monitoring pursuant to his three-year OLAP contract will allow\nhim to practice law without posing a threat to the public.\n {¶ 30} Accordingly, based on respondent’s conduct and our precedent,\nrespondent is hereby suspended from the practice of law in the state of Ohio for\none year, with the entire suspension stayed on the conditions that respondent (1)\ncomply with his OLAP contract, (2) accept the treatment recommended by OLAP\nand his psychologist, (3) serve a period of probation pursuant to Gov.Bar R. V(9)\n— monitored by relator — during the term of his three-year OLAP contract, and\n(4) pay the costs of disciplinary proceedings. If respondent fails to comply with\nthe conditions of the stay, the stay will be lifted, and respondent will serve the\nentire one-year suspension.\n {¶ 31} Costs are taxed to respondent.\n Judgment accordingly.\n BROWN, C.J., and PFEIFER, LUNDBERG STRATTON, O’CONNOR,\nO’DONNELL, LANZINGER, and CUPP, JJ., concur.\n __________________\n Jonathan E. Coughlan, Disciplinary Counsel, and Robert R. Berger, Senior\nAssistant Disciplinary Counsel, for relator.\n Koblentz & Penvose, L.L.C., Richard S. Koblentz, and Bryan L. Penvose,\nfor respondent.\n ______________________\n\n\n\n\n 10\n\f", "ocr": false, "opinion_id": 2691353 } ]
Ohio Supreme Court
Ohio Supreme Court
S
Ohio, OH
1,188,577
Donnelly, Lopez, Walters
1981-09-22
false
bottijliso-v-hutchison-fruit-co
Bottijliso
Bottijliso v. Hutchison Fruit Co.
John BOTTIJLISO, Plaintiff-Appellant, v. HUTCHISON FRUIT COMPANY, a New Mexico Corporation, Defendant-Appellee
David H. Pearlman, Pearlman & Diamond, P.A., Albuquerque, for plaintiff-appellant., Rebecca Houston, Keleher & McLeod, P. A., Albuquerque, for defendant-appellee.
null
null
null
null
null
null
null
Rehearing Denied Oct. 1, 1981.
null
null
32
Published
null
<citation id="b817-14" pgmap="817"> 635 P.2d 992 </citation><br><parties id="b817-15" pgmap="817"> John BOTTIJLISO, Plaintiff-Appellant, v. HUTCHISON FRUIT COMPANY, a New Mexico Corporation, Defendant-Appellee, </parties><br><docketnumber id="b817-18" pgmap="817"> No. 5070. </docketnumber><br><court id="b817-19" pgmap="817"> Court of Appeals of New Mexico. </court><br><decisiondate id="b817-20" pgmap="817"> Sept. 22, 1981. </decisiondate><br><otherdate id="b817-21" pgmap="817"> Rehearing Denied Oct. 1, 1981. </otherdate><br><attorneys id="b818-20" pgmap="818"> David H. Pearlman, Pearlman &amp; Diamond, P.A., Albuquerque, for plaintiff-appellant. </attorneys><br><attorneys id="b818-21" pgmap="818"> Rebecca Houston, Keleher &amp; McLeod, P. A., Albuquerque, for defendant-appellee. </attorneys>
[ "635 P.2d 992", "96 N.M. 789" ]
[ { "author_str": "Donnelly", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n635 P.2d 992 (1981)\n96 N.M. 789\nJohn BOTTIJLISO, Plaintiff-Appellant,\nv.\nHUTCHISON FRUIT COMPANY, a New Mexico Corporation, Defendant-Appellee.\nNo. 5070.\nCourt of Appeals of New Mexico.\nSeptember 22, 1981.\nRehearing Denied October 1, 1981.\n*993 David H. Pearlman, Pearlman &amp; Diamond, P.A., Albuquerque, for plaintiff-appellant.\nRebecca Houston, Keleher &amp; McLeod, P.A., Albuquerque, for defendant-appellee.\n\nOPINION\nDONNELLY, Judge.\nThe plaintiff appeals from an order of the trial court granting defendant's motion to dismiss for failure to state a claim upon which relief can be granted.\nPlaintiff was employed by defendant and suffered a compensable, job-related injury within the scope of his employment. He filed a claim under the Workmen's Compensation Act and obtained a judgment for benefits. Thereafter, the defendant terminated the plaintiff's employment.\nClaiming a retaliatory, wrongful discharge by defendant due to his assertion of his rights to recover workmen's compensation, the plaintiff filed a separate law suit against his former employer.\nDefendant moved to dismiss because the complaint failed to state a claim for relief, and following a hearing, the trial court granted the motion.\nThe question for decision is then: Does a cause of action exist in tort against a prior employer for discharge due to the exercise of one's rights under the Workmen's Compensation Act? This precise question has not been previously determined in New Mexico.\nAppellee has denied plaintiff's allegations as to the factual basis for plaintiff's dismissal from employment, and the *994 merits of such contentions have not been adjudicated. It is well settled that where a trial court grants a motion to dismiss for failure to state a claim, the allegations of the complaint must be taken as true for the purposes of an appeal. Jernigan v. New Amsterdam Casualty Co., 69 N.M. 336, 367 P.2d 519 (1961); Buhler v. Marrujo, 86 N.M. 399, 524 P.2d 1015 (Ct.App. 1974). A motion dismissing a complaint under N.M.R.Civ.P. 12(b)(6) is proper only when it appears that plaintiff cannot recover or obtain relief under any state of facts provable under the claim. Pattison v. Ford, 82 N.M. 605, 485 P.2d 361 (Ct.App. 1971).\nNew Mexico has not squarely addressed the question of whether an employee who applies for workmen's compensation benefits may be dismissed by an employer without cause and whether a complaint alleging such conduct states an actionable remedy in tort. Our courts have long adhered to the rule that an employee is terminable by an employer \"at will,\" either without cause or for a specific reason, in the absence of a contract of employment for a definite term, or in the absence of a showing that the discharge is predicated upon a fraudulent basis. Gonzales v. United Southwest National Bank, 93 N.M. 522, 602 P.2d 619 (1979); Garza v. United Child Care, Inc., 88 N.M. 30, 536 P.2d 1086 (1975); Odell v. Humble Oil &amp; Refining Co. 201 F.2d 123 (10th Cir., 1953), cert. denied 345 U.S. 941, 73 S. Ct. 833, 97 L. Ed. 1367. Similarly, under a contract of employment \"at will,\" it has been recognized that an employee may sever his employment at any time voluntarily. See, Aranda v. Mississippi Chemical Corp., 93 N.M. 412, 600 P.2d 1202 (Ct.App. 1979), cert. denied, 93 N.M. 683, 604 P.2d 821. Even under a contract for a definite term, an employer may discharge an employee where he is dissatisfied in good faith with services of the employee and the contract does not otherwise restrict grounds of discharge. Clem v. Bowman Lumber Co., 83 N.M. 659, 495 P.2d 1106 (Ct.App. 1972); Odell v. Humble Oil &amp; Refining Co., supra.\nThe right to employ and discharge at will has been recognized as one of the indicia of employment status in workmen's compensation cases. American Employers' Insurance Co. v. Grabert, 39 N.M. 173, 42 P.2d 1116 (1935); Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934); Burton v. Crawford &amp; Co., 89 N.M. 436, 553 P.2d 716 (Ct.App. 1976); Abbott v. Donathon, 86 N.M. 477, 525 P.2d 404 (Ct.App. 1974).\nIn Odell v. Humble Oil and Refining Co., supra, the Federal Court first addressed the issue of whether a cause of action exists in tort against an employer who has dismissed employees hired at will in this jurisdiction. In that case, suit was brought by several employees alleging that they had been subpoenaed to appear as witnesses before a federal grand jury investigating their employer. Following the return of a criminal indictment, plaintiffs asserted that they were wrongfully discharged from their employment in retaliation for their appearance and testimony before the grand jury. In discussing such claim the court held:\nIt is the universally recognized rule that in the absence of a contract or statutory provisions an employer may discharge an employee without cause or reason or for any cause or reason. So also it has been held by the overwhelming weight of authority that the discharge of an employee in violation of his contract irrespective of the motive therefor constitutes only a breach of contract and not a tort and that the recoverable damages are limited to those flowing from the contractual breach and that no punitive damages are recoverable no matter what the motive that prompted the discharge. The only exception to the rule is where the wrongful discharge is tinctured with fraud. But for obvious reasons motive for discharge alone does not partake of any of the elements necessary to constitute fraud.\n201 F.2d at 128.\nIn Jones v. International Union of Operating Engineers, 72 N.M. 322, 383 P.2d 571 (1963), a suit founded upon contract, the *995 Supreme Court reiterated an employer's right to discharge an employee at any time, whether for just cause or not, unless that right is restricted by a contractual limitation or other valid basis. In Jones, however, the court noted an exception, observing that an individual employee may enforce a collective labor agreement between the union as bargaining representative and the employer, where such agreement is found to have created a third-party beneficiary status in favor of the employee.\nMore recently, the court recognized that, although an employee could be discharged for no reason, a statutory cause of action arises under 42 U.S.C. § 1983 (1976) if the discharge was due to the employee's exercise of constitutionally protected rights. Jacobs v. Stratton, 94 N.M. 665, 615 P.2d 982 (1980).\nAnother exception recognized by the courts, limiting an employer's right to discharge an employee hired \"at will,\" is where the discharge is for a reason prohibited by the National Labor Relations Act. N.L.R.B. v. Standard Coil Productions Co., 224 F.2d 465, (1st Cir.1955) cert. denied 350 U.S. 902, 76 S. Ct. 180, 100 L. Ed. 792, 51 A.L.R. 2d 1268. The Federal Equal Employment Opportunity Act, 42 U.S.C. § 2000e (1976), also offers protection to an employee against retaliatory acts, including termination, following an employee's assertion of discriminatory practices exercised by an employer in violation of the act, 42 U.S.C. § 2000e-3.\nAppellant concedes that New Mexico has not previously recognized the existence of a cause of action in tort for wrongful discharge of an employee at will. He argues that such action should be judicially sanctioned on grounds of public policy. A similar argument was dealt with in Chin v. American Telephone and Telegraph Co., 96 Misc. 2d 1070, 410 N.Y.S.2d 737 (Sup.Ct. 1978). The employee was allegedly discharged in retaliation for his political beliefs and associations. There the court observed:\nThe last theory upon which plaintiff seeks relief is the doctrine of abusive discharge. Although it does not appear that this doctrine has been recognized in this state, it is appropriate, on a motion of this nature, to examine the elements of the cause of action to determine whether the complaint alleges sufficient facts upon which relief may be granted at trial. Since plaintiff is proceeding on a cause of action not presently recognized in this state, he bears a heavy burden of demonstrating that this new cause of action should be adopted.\nThe doctrine of abusive discharge, where it has been advocated in law review articles or adopted, limits the right of an employer to discharge an employee at will. This doctrine is implied by operation of law as an additional condition of the contract similar to the restrictions imposed by the Equal Employment Opportunity provisions of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.]. See generally, Note, A Common Law Action For The Abusively Discharged Employee, 26 Hastings L.J. 1435 (1975); Sventko v. Kroger Co., 69 Mich. App. 644, 245 N.W.2d 151 (1965). Under this theory the interest of the employer in the exercise of his unfettered right to terminate the employee under a contract at will is balanced against the interest of the community in upholding its laws in public policy. Nees v. Hocks, 272 Or. 210, 536 P.2d 512 (1975); Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973).\nAt the threshold, the doctrine of abusive discharge places upon the plaintiff the burden of pursuading this court that (1) there is a public policy of this state that (2) was violated by the defendant. Plaintiff herein has not sufficiently demonstrated that public policy, derived from or borrowed on New York constitutional, statutory or decisional law, exists that would restrict the right of the private employer to discharge an employee at will. . .\nThis is not to say that such public policy does not exist; it merely is to say that plaintiff herein has not sustained his burden *996 of persuasion. While this court is not adverse to recognizing new causes of action or defenses where clearly warranted. (Parkwood Realty Co. v. Marcano, 77 Misc. 2d 690, 353 N.Y.S.2d 623 (1974)), such recognition should be given upon substantial showing which has not been made here. (Emphasis added).\n410 N.Y.S.2d at 740-742.\nThe courts of other jurisdictions which have addressed this same issue in workmen's compensation cases have reached diverse results. The courts of Indiana, Michigan, Illinois, Oregon, and New Jersey have expressly recognized the existence of a cause of action in tort in such cases.[1] Contrary decisions have been handed down by courts in Alabama, Louisiana, Mississippi, South Carolina, Florida, North Carolina, and Missouri.[2] An annotation of cases on this subject is set forth at 63 A.L.R. 3d 979 (1975).\nThe states of North Carolina and Missouri have predicated their rejection of the existence of tort claims in workmen's compensation cases for retaliatory discharge on the ground that such courts felt the issue was more appropriately a matter within the legislative prerogative rather than the judiciary. Dockery v. Lampart Table Co., 36 N.C. App. 293, 244 S.E.2d 272 (1978), cert. denied 295 N.C. 465, 246 N.E.2d 215; Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (1956). California and Texas, although recognizing the validity of such tort claims, expressly support such actions upon the existence of specific statutory authority found in those jurisdictions. Raden v. City of Azusa, 97 Cal. App. 3d 336, 158 Cal. Rptr. 689 (1979); Texas Steel Co. v. Douglas, 533 S.W.2d 111 (Tex.Civ.App. 1978); Smith v. Coffee's Shop for Boys &amp; Men, Inc., 536 S.W.2d 83 (Tex.Civ.App. 1976).\nTracing the history of the New Mexico workmen's compensation laws, it is apparent that this state joined the ranks of other jurisdictions that enacted workmen's compensation legislation in 1917. (Laws 1917, Ch. 83, §§ 1-24). This legislation has undergone periodic extensive revision and recodification.\nOur review of the New Mexico workmen's compensation law indicates that the legislature has not expressly adopted any statutory provisions touching upon the issue presented here. The legislature, however, has in the Human Rights Act (§ 28-1-1, N.M.S.A. 1978 et seq.), adopted legislation expressly prohibiting certain unlawful discriminatory practices on the part of employers against their employees.\nSection 28-1-7 of the Human Rights Act provides in part as follows:\nIt is unlawful discriminatory practice for:\nA. An employer, unless based on a bonafide occupational qualification, to refuse to hire, to discharge, to promote or demote or to discriminate in matters of compensation against any person otherwise qualified because of race, age, religion, color, national origin, ancestry, sex or physical or mental handicap:\n....\nI. any person or employer to: (1) aid, abet, insight, compel, or coerce the doing of any unlawful discriminatory practice, or to attempt to do so; (2) engage in any form of threats, reprisal or discrimination against any person who has opposed any unlawful discriminatory practice or who has filed a complaint, testified or participated in any proceeding under the Human Rights Act; or (3) willfully obstruct or prevent any person from complying *997 with the provisions of the Human Rights Act, or to resist, prevent, impede or interfere with the commission of any of its members, staff, or representatives in the performance of their duties under the Human Rights Act. (Citations omitted, emphasis supplied).\nUnder the above act an employee who has been terminated from his employment for any of the reasons proscribed therein, has been provided an avenue for relief for such wrongful dismissal.\nOur court has noted with approval the practice of New Mexico employers in providing injured employees with light duty work following incurrence of injuries, and the sympathetic manner with which some employees, despite their inability to perform certain tasks, have been retained on the payroll following their injuries. Clymo v. United Nuclear Cor., 94 N.M. 214, 608 P.2d 526 (Ct.App. 1980). While recognition has been given to commendable practices on the part of certain employers toward injured employees, the courts in New Mexico have not judicially restricted the right of an employer to terminate an employee hired \"at will\" except where the dismissal is predicated upon a fraudulent basis. Odell v. Humble Oil and Refining Co., supra.\nA growing number of state legislative bodies have examined this question. They have seen fit to enact legislation restricting the right of employers to terminate employees who have sought in good faith to seek redress under their workmen's compensation statutes and have been discharged. As noted in 2A A. Larson, Workmen's Compensation Law, § 68.36 (Cum.Supp. 1981), \"[S]pecific antiretaliation clauses are increasingly common in modern legislation such as civil rights and fair employments acts....\"\nThis state's legislature has enacted comprehensive statutory provisions declaring certain types of conduct to be against public policy; we think this evinces a desire upon the part of the legislature to restrict the right of termination by an employer of an employee only in those areas specifically covered by legislative declaration. See, In Re Attorney General, 2 N.M. 49 (1881); 2A C. Sands, Sutherland Statutory Construction §§ 47.23-47.24 (4th Ed. 1973). The wisdom of adopting the relief advocated by appellant is best evaluated by the legislative branch and the determination of the appropriate format for such proposed legislative change, if any, is best weighed by the legislature. Hall v. Budagher, 76 N.M. 591, 417 P.2d 71 (1966).\nThe sagacity of making changes in workmen's compensation statutes, or rights created thereunder, has been generally held to be outside the province of the courts. Pedrazza v. Sid Fleming Contractor, Inc., 94 N.M. 59, 607 P.2d 597 (1980); Sanchez v. Bernalillo County, 57 N.M. 217, 257 P.2d 909 (1953). Moreover, our courts have held that the Workman's Compensation Act is sui generis. It creates exclusive rights, remedies and procedures. Casias v. Zia Co., 94 N.M. 723, 616 P.2d 436 (1980). In at least one instance, the court refused to create a new cause of action for employer subrogation tangential to the act. Security Insurance Co. of Hartford v. Chapman, 88 N.M. 292, 540 P.2d 222 (1975).\nThe Courts in New Mexico have not hesitated to recognize the existence of new causes of action or to abolish certain common law defenses where public policy or statutory grounds are found to warrant such judicially sanctioned change. F &amp; T Co. v. Woods, 92 N.M. 697, 597 P.2d 745 (1979), (recognizing as viable actions in tort, negligent hiring and negligent retention); Hicks v. New Mexico Highway Comm., 88 N.M. 588, 544 P.2d 1153 (1976), (abolishing the doctrine of sovereign immunity); Williamson v. Smith, 83 N.M. 336, 491 P.2d 1147 (1972) (abolishing defense of assumption of risk); Claymore v. City of Alb., 96 N.M. 682, 634 P.2d 1234 (20 N.M. Bar Bulletin 75 (1981) (abolishing defense of contributory negligence); Stotlar v. Hester, 92 N.M. 26, 582 P.2d 403 (Ct.App. 1978) (recognizing tort of negligence by words). Nevertheless, in light of New Mexico's long standing recognition of the \"at will\" rule, the issue of whether a new cause of action should be recognized in this state for retaliatory *998 dismissal is more appropriately addressed to the state legislature than to the judiciary.\nBased upon the foregoing, the ruling of the trial court is affirmed. Costs to appellant.\nIT IS SO ORDERED.\nLOPEZ and WALTERS, JJ., concur.\nNOTES\n[1] Frampton v. Central Indiana Gas, 260 Ind. 249, 297 N.E.2d 425 (1973); Sventko v. Kroger Co., 69 Mich. App. 644, 245 N.W.2d 151 (1976); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 23 Ill. Dec. 559, 384 N.E.2d 353 (1978); Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978); Lally v. Copygraphics, 173 N.J. Super. 162, 413 A.2d 960 (1980).\n[2] Martin v. Tapley, 360 So. 2d 708 (Ala. 1978); Stephens v. Justiss-Mears Oil Co., 300 So. 2d 510 (La. App. 1974); Green v. Amerada-Hess, 612 F.2d 212 (5th Cir.1980); Raley v. Darling Shop, 216 S.C. 536, 59 S.E.2d 148 (1950); Segal v. Arrow Indus., 364 So. 2d 89 (Fla.App. 1978); Dockery v. Lampart Table Co., 36 N.C. App. 293, 244 S.E.2d 272 (1978), cert. denied 295 N.C. 465, 246 S.E.2d 215; Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (1956).\n\n", "ocr": false, "opinion_id": 1188577 } ]
New Mexico Court of Appeals
New Mexico Court of Appeals
SA
New Mexico, NM
244,848
null
1958-03-26
false
john-hancock-mutual-life-insurance-company-a-corporation-v-mary-troutfelt
null
null
John Hancock Mutual Life Insurance Company, a Corporation v. Mary Troutfelt Cohen, Mary Troutfelt Cohen v. John Hancock Mutual Life Insurance Company, a Corporation
null
null
null
null
null
null
null
null
null
null
null
16
Published
null
null
[ "254 F.2d 417" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/254/254.F2d.417.15619_1.html", "author_id": null, "opinion_text": "254 F.2d 417\n JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a corporation, Appellant,v.Mary Troutfelt COHEN, Appellee.Mary Troutfelt COHEN, Appellant,v.JOHN HANCOCK MUTUAL LIFE INSURANCE COMPANY, a corporation, Appellee.\n No. 15619.\n United States Court of Appeals Ninth Circuit.\n March 26, 1958.\n \n Henry C. Clausen, Richard G. Burns, Keesling &amp; Keesling, William H. Keesling, San Francisco, Cal., for appellant.\n Brobeck, Phleger &amp; Harrison, Moses Lasky, Richard Haas, San Francisco, Cal., for appellee.\n Before HEALY, LEMMON and BARNES, Circuit Judges.\n BARNES, Circuit Judge.\n \n \n 1\n This is a suit between a citizen of New Mexico and a citizen of Massachusetts begun in the Superior Court of San Francisco and removed to the Federal Court pursuant to 28 U.S.C. &#167;&#167; 1332, 1441. Removal was proper. The District Court found a contract of insurance to exist, that defendant breached its contract, and awarded the full amount then due, and to become due, under the contract. The District Court refused to award damages for breach of an alleged warranty against having to employ any firm or persons to collect on the contract. Defendant insurance company appeals from the judgment awarding damages for breach of contract, and plaintiff cross-appeals from the denial of damages for breach of the alleged warranty. This Court has jurisdiction under 28 U.S.C. &#167; 1291.\n \n \n 2\n Plaintiff Mary Troutfelt Cohen is the surviving spouse of the insured Martin E. Troutfelt, and beneficiary of a contract of insurance between her deceased husband and the defendant John Hancock Mutual Life Insurance Company, a corporation, hereinafter, the \"company.\" The facts must be stated in some detail in order that we may understand the case.\n \n I &#8212; Facts and Findings\n \n 3\n Troutfelt originally applied to the defendant company in writing under date of February 1st, 1939 for a twenty-pay life policy, stating he wanted family income provisions for a twenty year term. (Form A, dated 2-1-39.) Such a policy, numbered 3171136, with such twenty year term, was thereafter issued.\n \n \n 4\n On May 31, 1939 the insured applied in writing to the company to convert or exchange his existing policy to a \"15 year Endowment with Family Income Provisions Policy.\" No space existed on such application for the insured to designate the term of the \"Supplementary Provision respecting Family Income,\" which was to be part of the policy. But he was informed and on his \"Application for Exchange or Conversion\" dated May 31, 1939 he represented:\n \n \n 5\n \"The statements made in the application on which the said original policy was issued, a copy of which is to be attached to and made a part of the said new policy, are hereby declared to be true and complete, and are confirmed as of the date of this application, and it is agreed that the said statements shall be accepted by the said Company as the basis for the new policy in like manner and with the same effect as if the said statements were herein specifically set forth.\"\n \n \n 6\n Sometime after May 31, 1939 and before July 11, 1939 Troutfelt received from the company a form of application, to be filled in, \"For Supplementary Provision for Family Income, to be attached to Existing Policies.\" Although this form is apparently signed and filled in by the insured (Troutfelt) in ink, three blanks thereon are filled in by typwritten figures: to-wit, the figures \"15\", \"10\", and \"$44.30\", in the following two \"boxes\":\n \n \n 7\n \"11. Term of the Supplementary Provision\n ... 15... years.\n (Insert 10, 15, or 20)\n 14. Premium to be paid Amount of\n for ... 10 ... years Premium:\n (Insert 5, 10, or 15) $44.30\"\n \n \n 8\n It is an admitted fact that \"all typewriting was inserted on the form by a representative of defendant and none by Martin E. Troutfelt.\" This application is dated July 11, 1939.\n \n \n 9\n On July 27, 1939 Policy No. 3223099 (the policy in suit) was issued under date of February 24, 1939; it being a 15 year Endowment Policy with premiums payable for 15 years. The relevant documents attached to the policy and made a part of it were: (1) a photostat of the prospective insured's February 1, 1939 Application for the original policy &#8212; Part A, Statements to the Company Agent (hereinabove mentioned); (2) a photostat of the insured's May 31, 1939 Application for Exchange or Conversion; (3) a photostat of the insured's July 11, 1939 Application for Supplementary Provision for Family Income; and, (4) a printed form No. 1260 denominated \"Supplementary Provision for Family Income with Benefit for total and Permanent Disability Waiver of Premiums.\" This is the crucial document.\n \n \n 10\n Inserted in this printed form by means of a typewriter were: (a) the number of the new policy, \"3223099\"; (b) the name of the insured, \"Martin E. Troutfelt\"; (c) the figures \"20\" (on two occasions) as the number of years from date of issue within which the insured's death must occur and during which the family income payments were to be made to the beneficiary; (d) the figure \"$43.20\" as the annual premium for the \"annuity certain\"; (e) the figure \"$1.10\" as the annual premium for the waiver of the annuity certain premium if under the permanent and total disability provisions there occurred a waiver of its premiums; and, (f) the figure \"15\", representing the number of years the special \"annuity certain\" and total and permanent disability premiums would be payable, \"in addition to and under the same conditions as the regular premium under the policy.\"\n \n \n 11\n Thus, the company through a claimed scrivener's error,1 issued a 15 year policy with a 20 year family income provision with premiums to be paid for 15 years, when it assertedly \"always limited itself\" to a 15 year family income provision with premiums payable for 10 years in any 15 year Endowment Policy.\n \n \n 12\n The insured died on June 28, 1945 within the 20 year period and with all premiums paid. Due proof of death was made to the company; the policy with all its riders was delivered to the company, and on July 26, 1945 the policy was endorsed by the company as follows:\n \n \n 13\n \"Insured died June 28, 1945. Settlement in accordance with the Supplementary Provision for Family Income, dated February 24th, 1939, attached hereto.\n \n \n 14\n John Hancock Mutual Life Ins.\n Company\n by (signed) Elmer L. French\n Secretary\n Dated at Boston, Mass., July 26,\n 1945.\"\n \n \n 15\n This Supplementary Provision for Family Income contained the following material provisions:\n \n \n 16\n \"If * * * the death of the Insured shall occur within 20 years from the date hereof [February 24, 1939], the Company * * * will, in lieu of immediate payment of the amount insured in one sum, pay to the beneficiary * * * on the first day of each policy month following the death of the Insured, a monthly income * * * the last monthly income payment to be made on the first day of the policy month directly preceding the expiration of 20 years from the date of issue of the provision. Upon the expiration of the said period the Company will pay the amount insured. * * * (here $5,000).\n \n \n 17\n * * * * *\n \n \n 18\n \"The special premium [for this monthly income] will be payable in addition to and under the same conditions as the regular premium under the policy during 15 years from the date of issue of this provision.\" [Emphasis added.]\n \n \n 19\n Pursuant to the two documents last mentioned above, after the insured's death the company paid to the beneficiary each month the sum of $49.98 to and including February 1st, 1954. The company then offered to make to plaintiff a lump sum payment of $4,993.59, \"due and payable on February 24, 1954,\" but refused to pay any further monthly sum. The beneficiary refused the lump sum payment.\n \n \n 20\n Defendant claimed below and here claims that the contract agreed upon provided, as to family income benefits, only 15 years (to February 1, 1954) of monthly payments in return for 10 years of premiums, as shown by the application allegedly submitted by the insured; and that the policy as written contained a clerical error and therefore did not represent the contract of the parties. Mistake was raised as an affirmative defense and by way of counterclaim for reformation. Both the defense and counterclaim were rejected by the District Court as unproved and barred by the statute of limitations.\n \n \n 21\n The only testimony respecting the alleged mistake was that of defendant's San Francisco clerk who stated that the application when received some seventeen years earlier was blank as to the terms of the family income supplement; that it had been filled out by the insurer and returned for signature of the insured; and that the company would never issue family income benefits for a period in excess of the premium payments of the main policy, i. e., 15 years in this case. Thus defendant asserts the application was the contract, and the policy contained a clerical error entitling the insurer to reformation or the defense of mutual mistake.\n \n \n 22\n The trial court found that the insured neither knew nor could reasonably have known of a mistake in the family income provisions of the policy as received and that the policy as received was the contract between the parties.2\n \n \n 23\n Additionally the court found that the insurer could have discovered its alleged mistake in 1939 or 1945, &#8212; both times the company having the policy for processing relative to the payment provisions and both times the policy having been checked and signed by officers of the insurer.3 Thus the court rejected the affirmative defense of mistake and denied the counterclaim for reformation.\n \n \n 24\n The court also denied plaintiff's claim for damages arising from the following clause in the policy: \"It is not necessary to employ any firm or person to collect the proceeds of this policy.\" The court rejected the argument that this was a warranty breached by this suit and entitling plaintiff to recover damages measured by attorney's fees. Plaintiff cross-appeals this result.\n \n Appellant states in its brief:\n \n 25\n \"* * * the Court below found that the terms of the contract between the company and the insured are those found in the written policy. The Court also found that there had been a scrivener's mistake, but ruled that it was merely a unilateral mistake, since insured neither knew nor suspected, nor reasonably could or should have known or suspected that a mistake had occurred. Finally, it was ruled that the insurance company was negligent in not discovering the mistake on each of the occasions when it had possession of the original policy. From the facts as thus determined, the Court then held that defendant did not have a right to relief, and that even should such right have once existed, it was now barred by the statute of limitations. The Court then held defendant in breach of its contract, applied the doctrine of anticipatory breach, and rendered judgment for plaintiff in the sum of $8000.00 plus various sums of interest. * * *\" Appellant's Opening Brief, p. 6.\n \n II &#8212; Alleged Error\n \n 26\n Appellant relies on seven specifications of error. The first five of them relate to the court's findings, and are as follows:\n \n \n 27\n \"1. The Trial Court erred in finding that by the terms of the contract between this appellant and the insured the said insured was to pay premiums for 15 years from the effective date thereof.\n \n \n 28\n \"2. The Trial Court erred in finding that by the terms of said contract this appellant agreed to make monthly payments of $50.00 per month to plaintiff for a period extending to and including February 1, 1959.\n \n \n 29\n \"3. The Trial Court erred in finding that the said insured did not know nor suspect, nor reasonably could or should have known or suspected any mistake in writing the premium payment term in the supplementary provision for family income as 15 (instead of 10) years, or in writing the income payment period therein as 20 (instead of 15) years, and in finding that such a mistake was the unilateral mistake of defendant alone.\n \n \n 30\n \"4. The Trial Court erred in finding that in the exercise of ordinary care or reasonable diligence, this appellant could have discovered its alleged mistake in 1939, or in 1945.\n \n \n 31\n \"5. The Trial Court erred in finding that this appellant discovered its alleged mistake in 1939 or at the latest on July 26, 1945.\" Appellant's Opening Brief, pp. 7, 8.\n \n \n 32\n We are satisfied no error was committed by the trial court in making such findings, which we now consider.\n \n III &#8212; The Contract of Insurance\n \n 33\n The difficulty with appellant's position is that it persists in urging here, as it did below, that the application represents the contract; \"that a prior agreement was reached\" and therefore is controlling over the erroneous terms embodied in the subsequent policy both as \"secondarily\" issued on July 27, 1939 and as modified by endorsement after the insured's death in 1945. This is simply not so. No agreement was reached until the policy was written in its final form.4\n \n \n 34\n Defendant urges it sustained its burden of proof in showing the family income rider to have been issued in error by producing the only witness who testified in person, one Dennis J. Lawton, an office supervisor or general clerical clerk for the defendant corporation's Mission office. In 1939 he had performed the same duties under another title. On direct examination he testified (1) that by the company's rate book a 20 year family income rider, with premiums payable for 15 years would cost $52.95 per year for $5,000 coverage, and that a 15 year family income rider with premiums payable for 10 years, would cost $43.20 per annum for $5,000 coverage; (2) that the supplementary riders \"cannot\" be issued for a period longer than the policy period; (3) that the company keeps no copy of the policy itself after issuance; and, (4) that premiums paid through mistake of the insured are ultimately refunded. On cross-examination it was shown through him (1) that the policy here in dispute was issued in Boston; (2) that it was company policy to have such a policy delivered to the insured by mailing through the San Francisco office.\n \n \n 35\n The one witness who testified on appellant's behalf had no specific recollection of the transaction in question nor was there any evidence that he had handled it. He was testifying to the usual course of business. No evidence was introduced by defendant as to how or when or by whom its alleged mistake was discovered.\n \n \n 36\n The defendant's position is clearly shown by a \"question\" asked of the witness Lawton by defense counsel (though later withdrawn): \"Q. Now, it is the company's position that the company would never have issued a 20 year family income rider on a 15 year endowment policy. Would you please explain to his Honor why the company would not do so?\"\n \n \n 37\n The fact is that the company did issue such a rider on such a policy; that payments in the amount fixed by the company, though erroneous for the coverage promised, were paid by the insured quarterly from August 24th, 1939 to the time of his death in June 1945. But of this error he had no knowledge during his lifetime. Thereafter and on July 26th, 1945 the insurance company, with that portion of the policy before it which it thought necessary to obtain or retain, agreed to pay family income monthly in accordance with the rider attached to the policy, i. e., until \"the first day of the policy month directly preceding the expiration of 20 years from the date of issuance,\" or to and including February 1, 1959.\n \n \n 38\n Did the defendant meet his burden of proof that the policy as written and pleaded was issued in error? The only witness was the clerk mentioned above. From the findings, it is clear (Finding 7)5 that the court did not consider this one witness, assuming he was believed, a sufficient source of evidence by which defendant could sustain his burden; and therefore believed and found unilateral mistake of defendant alone; that the insured \"neither knew or suspected nor reasonably could or should have known or suspected any mistake therein.\" There is no basis in the evidence introduced for rejecting the trial court's view of the evidence before him, and the findings made thereon as to what the contract was.\n \n \n 39\n Appellant also argues that if we assume a mistake was made, the statute of limitations was improperly applied because there was no discovery by defendant of its mistake. The court found the defendant could have discovered its alleged mistake in 1939 (Findings 8, 9) or at the latest on July 26th, 1945 (Findings 10, 11),6 and that \"It is not true that defendant discovered its alleged mistake in 1954 but, on the contrary, it discovered its alleged mistake in 1939 or at the latest on July 26, 1945\" (Finding 12). The defendant seriously urges that this is unsupported by the evidence because of the fact that \"no carbon copy or other duplicate of this written copy was retained by defendant;\" and, having requested the insured's copy at his death, \"the only purpose for the defendant having the written policy at that time was to stamp thereon its endorsement.\" We doubt if counsel for any insurance company would seriously urge us to ignore the rule that one who is presented with an insurance policy has the duty to read it. Fidelity &amp; Guaranty Fire Corp. v. Bilquist, 9 Cir., 1940, 108 F.2d 713, 716; cf. Palmquist v. Mercer, 1954, 43 Cal. 2d 92, 98, 272 P.2d 26, 30. Should this not apply equally to the company issuing it as to the party to whom it is issued? Particularly where the insuring company, for its own business purposes, follows a practice of destroying or, at least, not keeping, an exact record of its contractual obligations?\n \n \n 40\n The court's finding that the appellant had means of knowledge and discovery of its mistake is amply supported by the uncontradicted evidence. The three year period of West's Ann. California Code of Civil Procedure, &#167; 338(4) was applicable. Consolidated Reservoir &amp; Power Co. v. Scarborough, 1932, 216 Cal. 698, 703-704, 16 P.2d 268, 270.\n \n \n 41\n \"Discovery\" is a question of fact for the trial court. Uchida Inv. Co. v. Inagaki, 1952, 108 Cal. App. 2d 647, 654, 239 P.2d 644, 649.\n \n \n 42\n We not only can find nothing clearly erroneous here, but we fail to see how the trial court could have come to any other conclusion on the facts before him.\n \n \n 43\n We find nothing to indicate that the law of New Mexico and California differ on the issues thus far raised.\n \n \n 44\n We find no other matters raised in appellant's first five specifications of error which require comment.\n \n IV &#8212; Anticipatory Breach\n \n 45\n Appellant's sixth alleged error is the finding that the appellant committed an anticipatory breach of said contract on or about May 13th, 1954.7\n \n \n 46\n Appellant cites Cobb v. Pacific Mut. Life Ins. Co., 1935, 4 Cal. 2d 565, 51 P.2d 84; 12 Cal.Juris. 2nd Contracts, &#167; 250, and Restatement of Contracts, &#167; 318. Cal.Juris. 2d cites the Cobb case as authority for the rule there can be no anticipatory breach of a unilateral contract in California, and Flinn v. Mowry, 1901, 131 Cal. 481, 63 P. 724, 1006, and Brix v. People's Mut. Life Ins. Co., 1935, 2 Cal. 2d 446, 41 P.2d 537, (as well as Cobb, supra) for the proposition that\n \n \n 47\n \"* * * notwithstanding the failure or refusal to pay the installment, the other party cannot treat the contract as repudiated and demand payment in full, contrary to the terms of the contract providing for payment in installments.\"\n \n \n 48\n Appellee here urges that there yet remains a condition to be performed by the plaintiff &#8212; the surrender of the policy to the defendant in Boston. This being so, and relying on Corbin on Contracts &#167; 967, he states that the plaintiff can maintain an action at once for anticipatory repudiation. Corbin divides his discussion of repudiation of unilateral insurance contracts into two classes: First, \"those in which the insurer undertakes to pay a definite sum of money at a specified future time or on the happening of a future event that is certain to occur, but the time of which is uncertain. * * * A second class consists of disability and annuity policies. * * *\" (\"Annuity\" here is used, we presume, in its usual sense and not as an \"annuity certain\" in length of time as it was in the instant case.) In reference to the first class of cases, Corbin states:\n \n \n 49\n \"It is well settled by ample authority that an action lies at once for anticipatory repudiation by an insurer, either for the recovery of premiums paid or for damages.\" Corbin, &#167; 968.\n \n \n 50\n We need not go into Corbin's \"ample authority,\" nor determine if this action falls within the limited type of actions which Corbin states can be filed, &#8212; for recovery of premiums or damages.\n \n \n 51\n The contract here under consideration is a \"payment certain\" insurance contract. It has become, in effect, an unconditional unilateral contract for the payment of money in future installments. There were no contingencies which might occur to give the company a right to refuse payment. Even should the beneficiary have died, the \"payment certain\" would have been payable to her heirs. Particularly, after the insured's death and the company's endorsement on July 26, 1945 is this true. The insurer then undertook to pay certain sums each month and a larger certain sum at a later date.\n \n \n 52\n This contract falls neither into Corbin's first class &#8212; a definite sum or sums payable on a future event certain to occur, but uncertain as to the time of occurrence &#8212; nor into his second class &#8212; \"the disability and annuity policies providing for periodic payments for an indefinite time.\" It is a contract wherein the time for payment is certain and there remains no condition or covenant for performance by the plaintiff.\n \n \n 53\n Corbin does not like the \"dicta\" to the effect that there can be no anticipatory breach of a unilateral contract because in the first class of cases the doctrine is in fact applied. (See cases cited at Corbin, &#167; 968, n. 35.) Nor does he care for the rule that the doctrine of anticipatory breach is inapplicable to a case of an unconditional unilateral contract for the payment of money in installments, but he cites no authority to the contrary. (Corbin, &#167;&#167; 965, 969.)\n \n \n 54\n We are in essence here asked to hold that the doctrine of anticipatory breach applies to an unconditional unilateral insurance contract in a case where the insurer has promised to pay definite sums of money at specified future dates and that this should be declared by the Federal Court to be the law of New Mexico because an eminent writer and authority on contracts disagrees with the more recent New York cases and the Massachusetts rule and two Supreme Court cases. (Corbin, &#167; 968, n. 34.)\n \n \n 55\n We are asked to so rule in a case where the \"present value\" of future payments was not raised below, nor apparently considered by the trial court. Corbin states:\n \n \n 56\n \"Some of the courts denying that the insurer has committed a total breach by anticipation base their decision upon the ground that the contract is a unilateral contract for the payment of money. That this is not a good reason has already been argued in a previous section. The decision of the Supreme Court does not rest upon it; indeed, in the opinion rendered it is in part, at least, rejected. We differ with the court in holding that there was no total breach by anticipatory repudiation; but its reasoning and analysis may be otherwise approved. The decision itself need not be regretted, if it leads to the granting of the truly `appropriate relief' in all such cases. This is a single decree that money already overdue shall be paid, with interest, and that future installments shall be paid as they fall due. * * *\" Corbin, &#167; 969, pp. 893-4.\n \n \n 57\n Williston on Contracts states the general rule to be \"that no unilateral promise for an executed agreed exchange to pay money at a future time can be enforced until that day arrives.\" (Williston, &#167; 1328; accord, Restatement, Contracts &#167; 318.) With respect to the applicability of the doctrine of anticipatory breach to future disability payments, he says: \"[T]here remained divided opinions until two recent decisions of the Supreme Court of the United States,\" citing Mobley v. New York Life Ins. Co., 1935, 295 U.S. 632, 55 S. Ct. 876, 79 L. Ed. 1621; New York Life Ins. Co. v. Viglas, 1936, 297 U.S. 672, 56 S. Ct. 615, 80 L. Ed. 971; the Brix and Cobb cases, supra; and, 24 Calif.L.Rev. 216.\n \n Williston goes on:\n \n 58\n \"The only argument for allowing immediate recovery of a future payment due under such a (disability) policy is the hardship supposedly imposed on the insured of bringing successive suits.\" (&#167; 1330A.)\n \n \n 59\n He then points out how this can be avoided by the courts' \"full exercise of equitable powers.\" He quotes from Mobley v. New York Life Ins. Co., supra, to the effect that if the insured is\n \n \n 60\n \"* * * allowed a present recovery for all future benefits, the calculations on which insurance business is done would be upset, and the purposes for which the benefits were made payable only in installments would often be defeated.\" (Ibid.) Williston then criticizes as \"extreme\" the application of the doctrine to a non-insurance case in Texas,8 although \"the present value\" was therein determined, after use of expectancy tables &#8212; a value not herein considered by the trial court.\n \n \n 61\n We conclude the general rule to be that the doctrine of anticipatory breach has no application to suits to enforce contracts for future payment of money only, in installments or otherwise. Cobb v. Pacific Mutual, supra; Flinn v. Mowry, supra; Brix v. People's Mutual Life Ins. Co., supra; Sulyok v. Penzintezeti, 279 A.D. 528, 111 N.Y.S.2d 75, 82; 105 A.L.R. 460; Restatement, Contracts, &#167;&#167; 316-318; 5 Williston, Contracts, 3740-3743; 12 Cal.Jur.2d, Contracts, &#167;&#167; 246-250; see also 24 Calif.L.Rev. 216.\n \n \n 62\n Appellee seeks to distinguish the Brix and Cobb cases on the ground they deal with permanent and total disability only (which is true), and the Flinn v. Mowry case, as not a case of anticipatory breach, there being no repudiation. But he relies on Caminetti v. Manierre, cited as Caminetti v. Pacific Mutual Life Ins. Co., 1943, 23 Cal. 2d 94, 142 P.2d 741, which states:\n \n \n 63\n \"The wrongful cancellation of a contract of insurance under the certain circumstances is somewhat analogous to a breach by anticipatory repudiation. In the instant case the old company is insolvent and is being liquidated. It cannot perform under the noncancelable policies it had issued. They have been in effect cancelled. The situation is thus analogous to a breach by anticipatory repudiation. Anticipatory breach is recognized in California. 6 Cal.Jur. 457. Upon the repudiation the promisee may immediately bring an action for future damages. Hollywood Cleaning &amp; Pressing Co. v. Hollywood L. Service, 217 Cal. 131, 17 P.2d 712; Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88, 134 Am. St. Rep. 154. And `It is true that in most cases the determination of future damage is surrounded with many difficulties, but it hardly rests with defendant to complain of such difficulties, since they exist only because of the wrongful act of the defendant, itself. Seymour v. Oelrichs, supra.' Hollywood Cleaning &amp; Pressing Co. v. Hollywood L. Service, supra, 217 Cal. 134, 17 P.2d 713.\n \n \n 64\n \"The cases of Cobb v. Pacific Mutual Life Ins. Co., 4 Cal. 2d 565, 51 P.2d 84; Brix v. People's Mutual Life Ins. Co., 2 Cal. 2d 446, 41 P.2d 537, and Robinson v. Exempt Fire Co., 103 Cal. 1, 36 P. 955, 24 L.R.A. 715, 42 Am. St. Rep. 93, were concerned only with the question of the recovery of the payments that might become due for continuance in the future of the existing disability, as well as payments past due. There was not involved the issue of damages for a total repudiation of the contract of insurance where it is beyond the power of the insurer to respond in the future for future damages.\" Caminetti v. Manierre, supra, 142 P.2d at page 746.\n \n \n 65\n Appellant's reliance on 12 Cal. Jur. 2d, &#167; 250 is criticized by appellee, who states correctly that \"the statement of law in texts is no sounder than the cases that are cited to support the text.\" Appellee then cites the Caminetti case, which states Brix and Cobb and Robinson are not controlling because \"there was not involved the issue of damages for a total repudiation of the contracts of insurance where it is beyond the power of the insurer to respond in the future for future damages.\" [Emphasis added.] There is not the slightest suggestion here that the John Hancock Mutual Life Insurance Company \"cannot in the future respond for future damages.\" We recognize the possible distinction between \"disability contracts\" which are always, in effect, conditional, and contracts like the one in suit which are entirely unconditional. But we find no indication in either the law of New Mexico or of California9 of an intent to depart from the majority view that unconditional unilateral contracts for the payment of money in installments are not the proper subjects for the doctrine of anticipatory breach.\n \n \n 66\n It is our conclusion that the theory of anticipatory breach is not here applicable &#8212; to make it so where the defendant insurer has disputed liability in good faith would change the terms of the contract executed by the insurer and force him to pay now what he contracted to pay later; that the court should decree that money already overdue shall be paid now with interest; and that future installments shall be paid as they fall due, including the final payment.\n \n \n 67\n What we have said with respect to the alleged error in holding an anticipatory breach controls the seventh specification of error, and requires us to hold the judgment as given to be error.\n \n \n 68\n V &#8212; Failure to Award Attorney Fees as Damages for Breach of Warranty.\n \n \n 69\n Just as we find no basis for holding the trial court committed clear error in determining there was a breach of contract by the company, so do we find no error in the court's refusal to find breach of an alleged warranty against having to employ any firm or person to collect on the contract. The one case cited by cross-appellant, Guardian Life Ins. Co. of America v. Brackett, 108 Ind. App. 442, 27 N.E.2d 103, is quoted correctly, but does not support cross-appellant's position. We assume, from the care shown by appellee's counsel in citing cases on their principal point, that had there been cases existing in their favor on this issue we would have heard of them.\n \n \n 70\n We would consider it strange indeed for an insurer to guarantee the payment of attorney's fees in the event an honest dispute was carried by the insured to court, and lost by the insurer. Since the probable measure of damages for breach of the alleged warranty (were it one) is the amount of fees paid to collect on the policy, the alleged warrant is in effect such a guarantee. Did the parties understand the company guaranteed the insured attorneys' fees in the event of suit? We do not so understand their contract. The alleged warranty appears on the back of the policy, entirely separate from the numerous covenants and conditions contained therein. It is located so as to be seen by the insured as he unfolds the policy. Whatever the meaning of this isolated sentence may be, we cannot, without more direct expression of intent, conclude that it constitutes a warranty for costs, i. e., attorneys' fees, in the event of successful litigation against the insurer on the policy.\n \n \n 71\n We find no error in refusing to award damages to cross-appellant.\n \n VI &#8212; Conclusion\n \n 72\n The cause is remanded, with directions to award plaintiff an amount equal to payments due to the date of judgment, plus interest; decreeing that future installments shall be paid when they fall due, together with the final lump sum payment; and, that appellee be awarded her costs, both below and on this appeal.\n \n \n 73\n Remanded with directions.\n \n \n \n Notes:\n \n \n 1\n The court, in its written opinion, stated the defendant made a mistake, but the court made no finding of mistake, although it found and referred to defendant's \"alleged mistake.\" We, of course, are bound by the findings. But we will refer in this opinion to the insurance company's \"mistake.\"\n \n \n 2\n Finding 7\n \n \n 3\n Findings, 11, 9\n \n \n 4\n The best proof of this is that under appellant's theory there were two inconsistent applications attached to and made a part of the policy. One asked for a 20 year family income provision; one a 15 year family income provision. Appellant does not state why the latter should prevail, except that it was later than the former in point of time. But the latter did not supersede the former. And it was the former 20-15 year provisions which weresubsequently inserted by the company in the policy \"secondarily\" issued, and subsequently specifically ratified.\n \n \n 5\n Finding 7: \"Defendant never informed said Troutfelt that said contract or any term or part thereof was a mistake or the result of a mistake, and said Troutfelt neither knew nor suspected, nor reasonably could or should have known or suspected, any mistake therein, and any mistakes in writing the premium payment term in the said `Supplementary Provision for Family Income' as 15 (instead of 10) years, or in writing the income payment period therein as 20 (instead of 15) years, or in any other respect, was not a mutual mistake but was the unilateral mistake of defendant alone.\" [Tr. p. 102.]\n \n \n 6\n Finding 9: \"In the exercise of ordinary care or reasonable diligence, defendant could have discovered its alleged mistake in 1939.\" [Tr. p. 103.]\n Finding 11: \"In the exercise of ordinary care or reasonable diligence, defendant could have discovered its alleged mistake in 1945.\" [Tr. p. 104.]\n \n \n 7\n Finding 14: \"On or about May 13, 1954 defendant notified plaintiff in writing that it `does not consider it is liable for any further monthly payments under the family income provision', and that it would pay a final payment of $4,993.59 but only upon surrender of the policy. Thereby defendant committed an anticipatory breach of the said contract entered into between it and said Troutfelt.\" [Tr. p. 104.]\n \n \n 8\n Pollack v. Pollack, Tex.Civ.App., 23 S.W.2d 890, Tex.Com.App., 39 S.W.2d 853\n \n \n 9\n Guitron v. Rodriguez, 105 Cal. App. 513, 288 P. 134, cited by appellee is authority for the general proposition that \"when the repudiation of an executory contract results in a violation of the contract `in omnibus,' the injured party may treat the entire contract as at an end and sue for damages for the breach.\" (There plaintiff was awarded $1000 damages for breach of an oral contract for the sale of personal property, by the terms of which the vendor was entitled to $2700 in monthly payments of $150 each.) The plaintiff there wasnot suing to enforce the contract.\n \n \n ", "ocr": false, "opinion_id": 244848 } ]
Ninth Circuit
Court of Appeals for the Ninth Circuit
F
USA, Federal
31,940
null
2003-07-09
false
in-re-argo-fincl
In Re: Argo Fincl
In Re: Argo Fincl
null
null
null
null
null
null
null
null
null
null
null
null
6
Published
null
null
[ "337 F.3d 516" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 22, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\02/02-30395.CV0.wpd.pdf", "author_id": null, "opinion_text": "337 F.3d 516\n In the Matter of: ARGO FINANCIAL, INC., Debtor.Advanta Auto Finance Corporation, Appellant,v.Sugarland Motor Company, Inc., doing business as Harvest Ford-Lincoln-Mercury, doing business as Harvest-Sugarland, Appellee.\n No. 02-30395.\n United States Court of Appeals, Fifth Circuit.\n July 8, 2003.\n \n COPYRIGHT MATERIAL OMITTED Charles R. Penot, Jr., David S. Willenzik, McGlinchey Stafford, New Orleans, LA, for Appellant.\n Lawrence R. Anderson, Jr., Seale, Smith, Zuber &amp; Barnette, Baton Rouge, LA, for Appellee.\n Appeal from the United States District Court for the Eastern District of Louisiana.\n Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.\n DENNIS, Circuit Judge:\n \n \n 1\n Louisiana law gives a vendor the right to demand dissolution of a sale for nonpayment of the purchase price. In this case, an unpaid vendor sought to dissolve sales of movable property after the original purchaser had resold the movables to a third party in good faith. We hold, under these circumstances, that the vendor's exercising its right of dissolution could not impair the third party's rights in the movables. Accordingly, we reverse the district court's judgment and remand this case for further proceedings.\n \n I. BACKGROUND\n \n 2\n Sugarland Motor Company (\"Sugarland\") owns and operates motor vehicle dealerships in Plaquemine, Louisiana. Those dealerships originate retail installment contracts (\"RICs\") when they sell vehicles on credit. By executing an RIC, the buyer grants a security interest in his new vehicle to secure his obligation to pay the financed portion of the vehicle's purchase price. Thus, each contract includes the buyer's promise to pay the amount financed plus daily accruing finance charges and a security agreement creating a security interest in the vehicle in favor of Sugarland and its assignees. Immediately after a credit sale is complete, Sugarland assigns the RIC to a consumer finance company.1 By this point the finance company has already verified the buyer's creditworthiness and agreed to pay Sugarland the financed portion of the price. The buyer then makes monthly payments to the finance company or its assignee.\n \n \n 3\n Argo Financial, Inc. (\"Argo\"), was a finance company that Sugarland dealt with on a regular basis. When it sold an RIC to Argo, Sugarland would send the original contract to Argo by overnight delivery. Argo usually mailed a check to Sugarland for the full amount financed five to ten days after receiving the RIC. After receiving the payment from Argo, Sugarland would submit a copy of the RIC and a title application for the vehicle described in the RIC to the Louisiana Department of Public Safety and Corrections, Office of Motor Vehicles (\"OMV\" or \"Louisiana OMV\"). Under Louisiana law, a security interest in the vehicle would be perfected upon the OMV's receipt of the RIC.2 The OMV would then issue a certificate of title showing Argo as the vehicle's \"first lienholder,\" and Sugarland would send the certificate to Argo. Argo, in turn, would resell the RIC to another finance company &#8212; in this case, Advanta Auto Finance Corporation (\"Advanta\"). When Argo received a title certificate for a vehicle associated with an RIC that it had sold to Advanta, Argo would forward the certificate to Advanta along with the documents necessary for Advanta to have a new certificate issued noting its security interest in the vehicle.\n \n \n 4\n Two RICs originated by Sugarland are at issue here. Maudria Fox executed the first one on September 29, 1998; Susan and Stephen Kennard (collectively \"Kennard\") executed the second on October 2, 1998. In each instance, Sugarland sold and delivered the RIC to Argo. But Sugarland did not receive payment from Argo within the customary time frame. After giving several assurances that payment was forthcoming, Argo finally advised Sugarland that it had filed for bankruptcy, that it was therefore unable to fund the RICs, and that Sugarland needed either to get the vehicles back from Fox and Kennard or to finance the sales with another lender.3 In the meantime, however, Argo had sold and delivered the RICs to Advanta.4 Unaware that Sugarland had not received payment, Advanta promptly paid Argo the agreed-upon purchase price for each RIC.\n \n \n 5\n After learning that Argo was in bankruptcy, Sugarland informed Fox and Kennard that they needed to switch lenders and convinced them to execute new RICs. Although Fox and Kennard had each made one payment to Advanta when they executed the new RICs, Sugarland claims it was unaware that Advanta had purchased the original contracts from Argo. Sugarland immediately sold the new contracts to Americredit Financial Services, Inc. (\"Americredit\"), and filed the appropriate documents with the Louisiana OMV. In due course, the OMV issued title certificates showing Americredit as the first lienholder of the Fox and Kennard vehicles. Fox and Kennard then quit making payments to Advanta under the terms of the original RICs and began paying Americredit instead.\n \n \n 6\n Because it never received payment from Argo, Sugarland never filed with the OMV copies of the original RICs or title applications requesting that Argo's security interest be noted on each vehicle's title certificate. It follows that neither Argo nor Advanta ever received title certificates for the Fox and Kennard vehicles. Because Sugarland forwarded the title certificates it actually applied for and received to Americredit, Advanta was never able to obtain new certificates noting its security interests in the vehicles.5 Thus, although Advanta is still in possession of the original RICs, its security interests in the Fox and Kennard vehicles are unperfected.\n \n \n 7\n In this adversary proceeding related to Argo's bankruptcy, Advanta brought a conversion claim against Sugarland, alleging that Sugarland interfered with or destroyed its right to payment under the original RICs by enticing Fox and Kennard to execute new contracts. Relying on Louisiana Civil Code articles 2561, 2013, and 2016, Sugarland answered that it was not liable to Advanta in tort or otherwise because Argo's failure to pay the purchase prices entitled it to regard the sales of the RICs to Argo as dissolved. The general effect of dissolution is to restore the seller and the buyer to the situation that existed before the sale; thus, Sugarland maintained that the rights in the RICs that Advanta acquired from Argo did not survive the dissolution of the initial sales. Advanta responded that its rights as the owner of the original RICs were governed by Chapter 9 of the Louisiana Commercial Laws (\"Chapter 9\"), Louisiana's version of U.C.C. Article 9,6 and were superior to any rights and remedies that Sugarland may have had under the Louisiana Civil Code as a result of Argo's nonpayment of the purchase prices.\n \n \n 8\n This matter went to trial in the bankruptcy court on the stipulated facts appearing in the parties' pretrial order.7 In its \"Proposed Findings of Fact and Conclusions of Law in a Non-Core Proceeding,\" the bankruptcy court recommended that the district court enter judgment in favor of Advanta. The bankruptcy court rejected Sugarland's argument that it was entitled to regard the sales of the RICs to Argo as dissolved, reasoning that \"Advanta, as the holder of a security interest governed by [Chapter 9], has an interest in the RICs that is superior to any right Sugarland may have under the Civil Code.\" Despite this rejection of Sugarland's defense to Advanta's conversion claim, the bankruptcy court did not consider the merits of that claim. The court based its recommendation instead on a breach of warranty theory that it raised sua sponte. In the \"Assignment by Seller\" section of the RICs, Sugarland warranted that it would \"perfect a security interest in the Property in favor of [Argo].\" The court found that Sugarland breached this warranty by not submitting to the Louisiana OMV copies of the original RICs along with title applications requesting that Argo's security interests in the Fox and Kennard vehicles be noted on the respective title certificates. Further finding that Argo's rights vested in Advanta by subrogation, the court concluded that Sugarland was liable to Advanta for breach of warranty.\n \n \n 9\n Sugarland filed objections to the bankruptcy court's proposed conclusions of law. The district court maintained those objections, reasoning that although Sugarland warranted that it would perfect security interests in the Fox and Kennard vehicles in favor of Argo, \"[i]t did not ... warrant that it would do so prior to being paid.\" Contrary to the bankruptcy court's proposed conclusion, the district court determined that \"[n]othing in Chapter 9 displaces the general principle of Louisiana law ... that a seller may deem a contract dissolved if the buyer fails to pay the agreed-upon purchase price.\" The court then found that Argo's nonpayment of the purchase prices entitled Sugarland to regard the sales of the RICs to Argo as dissolved and concluded that, as a consequence of dissolution, \"any purported assignment of Argo's rights to Advanta was ineffectual.\" In accordance with this conclusion, the district court entered a final judgment dismissing Advanta's claim against Sugarland. This appeal followed.\n \n II. ANALYSIS\n \n 10\n Because the facts of this case are undisputed and the district court's decision rests solely on a conclusion of law, our review is de novo.8\n \n \n 11\n In Louisiana, an unpaid vendor has the right to demand dissolution of a sale made on credit.9 Louisiana Civil Code article 2561 provides, in part, that \"[i]f the buyer fails to pay the price, the seller may sue for dissolution of the sale.\"10 This substantive right of dissolution is clearly distinguishable from the privilege that the vendor has on the thing sold for the payment of the purchase price: \"Exercise of the vendor's privilege involves an assertion of the sale; in contrast, exercise of the vendor's right of dissolution involves a repudiation of the sale and its consequences.\"11\n \n \n 12\n Although Article 2561 speaks only of judicial dissolution, the Civil Code specifies other means of dissolution that may be available to an unpaid vendor.12 In certain cases in which an obligor has failed to perform, Article 2013 of the Civil Code permits the obligee to regard the contract as dissolved instead of filing suit.13 Article 2016 describes the general circumstances under which the obligee can take such unilateral action without first serving the obligor with a notice to perform: \"When a delayed performance would no longer be of value to the obligee or when it is evident that the obligor will not perform, the obligee may regard the contract as dissolved without any notice to the obligor.\"14 Applying these principles to the contract of sale, it becomes clear that extrajudicial dissolution is available in cases in which the buyer has advised the seller that he cannot or will not perform his obligation to pay the purchase price.\n \n \n 13\n Because Argo had advised Sugarland that it was in bankruptcy and was therefore unable to pay the purchase prices for the Fox and Kennard RICs, the district court found that Sugarland was entitled to regard the sales of the RICs to Argo as dissolved. Although Advanta disputes this finding, its principal argument is that Chapter 9 of the Louisiana Commercial Laws, and not the Civil Code articles on dissolution, controls the outcome of this case.15 The ultimate merit of this argument hinges on whether Sugarland's right of dissolution conflicts with Advanta's rights under Chapter 9.16 Fortunately, we need not decide today whether such a conflict exists, for we agree with Advanta's alternative argument &#8212; grounded in the Louisiana Civil Code &#8212; that even if Sugarland was entitled to regard the sales of the RICs to Argo as dissolved, dissolution could not impair the rights that Advanta acquired from Argo in good faith.17\n \n \n 14\n Because dissolution restores the parties to the situation that existed before they entered the contract of sale,18 problems arise when the property sold is no longer in the hands of the original purchaser. In such cases, the availability of dissolution and its effect on the rights that a third party has acquired has long depended on whether the sale involves movable or immovable property.19 In Robertson v. Buoni, the Louisiana Supreme Court reviewed over a century of jurisprudence and observed that the \"right to dissolution of a sale of an immovable for nonpayment is not contingent on the absence of a third party purchaser. A vendor seeking dissolution of the sale may do so even after the property has left the hands of the original purchaser.\"20 On the other hand, courts have held that the unpaid vendor of a movable can exercise the right of dissolution \"only so long as the movable remains in the possession of the original vendee.\"21\n \n \n 15\n According to Professor Yiannopoulos, the application of different rules to movables and immovables reflects that transactions involving the former are generally not protected by a system of public records:22 \"Immovable property has been protected by the law much more effectively than movable property; and, whereas security of acquisition of immovables is achieved by the system of public records, security of transaction and acquisition of movables is enhanced by the bona fide purchaser doctrine.\"23 Thus, it is in the interest of security of transactions that the vendor's right of dissolution \"becomes inoperative against third possessors of movables.\"24\n \n \n 16\n The Louisiana Legislature had this interest in mind when it enacted Civil Code article 2021 as part of the 1984 revision of the law of obligations. That article provides: \"Dissolution of a contract does not impair the rights acquired through an onerous contract by a third party in good faith. If the contract involves immovable property, the principles of recordation apply.\"25 Where credit sales of movables are concerned, Article 2021 is consistent with the earlier jurisprudential rule that the unpaid vendor cannot exercise his right of dissolution if the movables sold are no longer in the possession of the original purchaser.26 Although the courts' focus was on whether the vendor could \"exercise\" his right of dissolution, and Article 2021 assumes the dissolution and addresses its consequences, the end result is the same: the third party retains the rights he has acquired. We therefore find it clearly established under Louisiana law that the exercise of the vendor's right of dissolution does not impair the rights in movable property that a third party has acquired through an onerous contract in good faith.\n \n \n 17\n In this case, Advanta undoubtedly acquired its rights in the RICs through an onerous contract with Argo.27 Furthermore, Sugarland does not dispute that Advanta acquired those rights in good faith. Because the record indicates that Advanta paid reasonable prices for the RICs and was not aware of Argo's nonpayment, we find that Advanta stands in the position of a good faith purchaser.28 We therefore conclude that even if Sugarland was entitled to regard the sales of the RICs to Argo as dissolved, dissolution of the sales could not impair the rights that Advanta acquired from Argo, which include the right to receive payments under the terms of the RICs.\n \n \n 18\n Accordingly, we hold that the district court's dismissal of Advanta's conversion claim on the basis of the vendor's right of dissolution was erroneous. Because the district court did not consider the merits of that claim, we find it appropriate to remand this case so that it may do so in the first instance.29\n \n III. CONCLUSION\n \n 19\n For the foregoing reasons, we reverse the district court's judgment and remand this case for further proceedings consistent with this opinion.\n \n \n 20\n REVERSED AND REMANDED.\n \n \n \n Notes:\n \n \n 1\n An assignment is a \"species of sale\" under Louisiana lawSee Sanson Four Rentals, L.L.C. v. Faulk, 803 So.2d 1048, 1052 (La.App.2d Cir.2001) (citing Scott v. Corkern, 231 La. 368, 91 So.2d 569, 571 (1956)). To facilitate application of Louisiana law, we generally refer to the transactions at issue in this case as sales rather than assignments.\n \n \n 2\n See La.R.S. 10:9-501(a)(1); see also La.R.S. 32:710(A) (\"A security interest covering a titled motor vehicle ... shall be perfected as of the time the financing statement is received by the Department of Public Safety and Corrections, so long as such receipt subsequently is validated by the secretary of the Department of Public Safety and Corrections.\"). Because the RICs that Sugarland originates provide the name of the buyer (the debtor), the name of the seller (the secured party), and a description of the motor vehicle purchased (an indication of the collateral covered by the security agreement), the contracts satisfy the formal requirements for a financing statement. See La.R.S. 10:9-502(a), 10:9-504(3); see also David Willenzik, Louisiana Secured Transactions &#167; 6:14, at 6-16 to 6-17 (West 2002) (\"Certain lenders choose to file a copy of the borrower's UCC security agreement (rather than a UCC-1 financing statement) in connection with indirect dealer credit sales transactions (particularly those involving motor vehicles).... Generally, it is viewed to be easier and less cumbersome for a dealer to require its customers to sign combination retail installment sales contract forms, which include UCC security agreement covenants, and then to file such contract forms with the appropriate filing officer.\").\n \n \n 3\n Argo filed a Chapter 7 petition on November 3, 1998, in the United States Bankruptcy Court for the Eastern District of Louisiana\n \n \n 4\n The sales preceded Argo's bankruptcy filing by less than one month\n \n \n 5\n See La.R.S. 32:710(E).\n \n \n 6\n See La.R.S. 10:9-101 to 10:9-710.\n \n \n 7\n Sugarland did not consent to the entry of final judgment by the bankruptcy court in this non-core \"related to\" proceeding. Thus, the bankruptcy judge was required to submit proposed findings of fact and conclusions of law to the district courtSee 28 U.S.C. &#167; 157(c).\n \n \n 8\n See Matter of Taylor, 132 F.3d 256, 259 (5th Cir.1998).\n \n \n 9\n See La. Civ.Code art. 2561; A.N. Yiannopoulos, Property &#167; 121, at 280, in 2 Louisiana Civil Law Treatise (4th ed.2001). Because Sugarland agreed that payment was due sometime after it delivered the RICs to Argo, the sales at issue here were made on credit. See Parnell v. Baham, 228 So.2d 53, 57 (La.App. 4th Cir.1969) (\"When delivery is made and ownership transferred by the seller to the purchaser upon an agreement that the purchaser will pay later &#8212; whether it be hours, days, or longer &#8212; it is a credit sale.\"), writ refused, 255 La. 242, 230 So.2d 92 (1970).\n \n \n 10\n La. Civ.Code art. 2561\n \n \n 11\n Yiannopoulos,supra note 9, &#167; 121, at 280. For a discussion of the Louisiana vendor's privilege, see id. &#167; 232.\n \n \n 12\n See La. Civ.Code. art. 2561 cmt. (i) (\"While the thrust of this Article is on judicial dissolution, it does not negate the possibility that dissolution might be effected through some other means provided by law.\").\n \n \n 13\n See La. Civ.Code art. 2013. Articles 2013 through 2024, the Civil Code's general articles on contract dissolution, compose Chapter 9 of the Code's title on Conventional Obligations or Contracts. Although Article 2561 appears in the title on Sale, the first article of that title provides that \"[i]n all matters for which no special provision is made in this title, the contract of sale is governed by the rules of the titles on Obligations in General and Conventional Obligations or Contracts.\" La. Civ.Code art. 2438. Thus, the general articles on contract dissolution govern the vendor's right of dissolution in the absence of a special provision applicable to sales. See La. Civ.Code. art. 2561 cmt. (i) (citing La. Civ.Code arts. 2013-2024); see also La. Civ. Code. art. 2564 cmt. (explaining that changes were made to the article as part of the 1993 revision of the Louisiana law of sale to achieve consistency with the general articles on dissolution).\n \n \n 14\n La. Civ.Code art. 2016\n \n \n 15\n In brief, Advanta contends that both RICs are chattel paper, such that the perfection and priority rules of Chapter 9 applySee La.R.S. 10:9-102(a)(11) (\"`Chattel paper' means a record or records that evidence both a monetary obligation and a security interest in specific goods....\"); La.R.S. 10:9-109(a)(3) (providing that Chapter 9 applies to sales of chattel paper); id. U.C.C. cmt. 5 (stating that the principal effect of subjecting sales of chattel paper to U.C.C. Article 9 is to apply the Article's perfection and priority rules to those transactions).\n \n \n 16\n See La.R.S. 9:3192 (\"In case of conflict between the provisions of Title VII of Book III of the Civil Code, governing sales[,] and any provisions of any special legislation, such as those contained in Titles 9 and 10 of the Louisiana Revised Statutes of 1950 and the Louisiana Lease of Movables Act, the latter shall prevail with regard to transactions subject thereto.\"); cf. La.R.S. 10:1-103 (\"Unless displaced by the particular provisions of this Title, the other laws of Louisiana shall apply.\").\n \n \n 17\n We note, however, that the district court's conclusion that the vendor's right of dissolution does not conflict with any specific provision of Chapter 9 finds support in the writings of Louisiana's leading property law scholarSee Yiannopoulos, supra note 9, &#167; 233, at 468 n. 10 (4th ed. 2001 &amp; Supp. 2002) (\"The vendor's right of dissolution is not affected by Chapter 9, and it would seem that this right primes a later security interest.\").\n \n \n 18\n See La. Civ.Code art. 2018.\n \n \n 19\n In Louisiana, movables are a residual category of things. Yiannopoulos,supra note 9, &#167; 148, at 342. Article 475 of the Civil Code provides that \"[a]ll things, corporeal or incorporeal, that the law does not consider as immovables, are movables.\" La. Civ.Code art. 475. As this provision suggests, the law recognizes two kinds of immovables: corporeal immovables and incorporeal immovables. \"Corporeal immovables are tracts of land with their component parts, such as buildings, other constructions permanently attached to the ground, standing timber, and unharvested crops or ungathered fruits of trees.\" Yiannopoulos, supra note 9, &#167; 113, at 264 (citing La. Civ.Code arts. 462, 463). Incorporeal immovables are rights and actions that have an immovable object; this category includes personal servitudes, predial servitudes, mineral rights, and petitory or possessory actions. Id. (citing La. Civ.Code art. 470). Because the RICs at issue in this case do not fall within either category of immovables, they are movables as a matter of law.\n \n \n 20\n 504 So.2d 860, 863 (La. 1987) (citingStevenson v. Brown, 32 La. Ann. 461 (1880)). But see id. at 863 &amp; n. 1 (Lemmon, J., concurring) (\"When a sale of immovable property has been recorded, the seller's right to dissolution, as against a subsequent purchaser, may depend on whether the recorded original sale indicates that the price has or has not been paid. A subsequent purchaser should be protected against a claim for dissolution of a recorded sale unless the records indicate that the price was not paid.\" (citing A.N. Yiannopoulos, Property &#167; 165, in 2 Louisiana Civil Law Treatise (2d ed.1980))); Yiannopoulos, supra note 9, &#167; 233; LeBlanc v. Bernard, 554 So.2d 1378, 1381 (La.App. 1st Cir.1989) (holding that a third party is protected against an unpaid vendor's claim for dissolution when the public records reflect that the purchase price has been paid), writ denied, 559 So.2d 1357 (La.1990).\n \n \n 21\n W.M. Bailey &amp; Sons v. Western Geophysical Co., 66 So.2d 424, 428 (La.App.2d Cir.1953) (citing Lalance Grosjean Mfg. Co. v. Wolff, 28 La. Ann. 942, 1876 WL 8765 (1876)).\n \n \n 22\n An obvious and notable exception is the title registration system for motor vehiclesSee La.R.S. 32:701-32:738.\n \n \n 23\n Yiannopoulos,supra note 9, &#167; 233, at 469.\n \n \n 24\n Id. See Lalance Grosjean, 28 La. Ann. at 942 (\"The rights to and upon movable property are subject to rules different from those relating to immovables.... The interests of commerce make some such difference necessary, and the business community would feel much alarm at the doctrine that any vendor could dissolve the sale of merchandise found in the hands of a second or third vendee.\").\n \n \n 25\n La. Civ.Code art. 2021See generally Shael Herman, Detrimental Reliance in Louisiana Law &#8212; Past, Present, and Future (?): The Code Drafter's Perspective, 58 Tul. L. Rev. 707, 752 (1984) (explaining that Article 2021 reflects an effort to \"broadly articulate the principle of protection of the bona fide purchaser of both movables and immovables who acquires rights by onerous contract in reliance upon either the public records (in the case of immovables) or the transferor's apparent authority to transfer (in the case of movables)\").\n \n \n 26\n According to the revision comment, Article 2021 expresses a principle implied in Article 3229 of the Civil CodeSee La. Civ.Code art. 2021 cmt. Article 3229, which applies only to cash sales of movables, provides that an unpaid seller can \"claim back the things in kind, which were thus sold, as long as they are in possession of the purchaser, and prevent the resale of them; provided the claim for restitution be made within eight days of the delivery at farthest, and that the identity of the objects be established.\" La. Civ.Code art. 3229 (emphasis added). Before the enactment of Article 2021, courts that held that the right of dissolution could be exercised only so long as the movable sold on credit remained in the possession of the original purchaser did so by analogy to Article 3229. See Yiannopoulos, supra note 9, &#167; 233, at 468.\n \n \n 27\n See La. Civ.Code art. 1909 (\"A contract is onerous when each of the parties obtains an advantage in exchange for his obligation.\").\n \n \n 28\n See generally Sa&#250;l Litvinoff, The Law of Obligations &#167; 1.8, in 5 Louisiana Civil Law Treatise (2d ed.2001) (discussing the concept of good faith).\n \n \n 29\n Advanta has made no argument to this court in support of the bankruptcy court's recommendation that judgment be entered in its favor on breach of warranty grounds. In fact, Advanta maintains in its briefs that its only cause of action against Sugarland is for tortious conversion under Louisiana law. Thus, the district court should not reconsider the bankruptcy court's recommendation on remand\n \n \n \n 21\n EMILIO M. GARZA, Circuit Judge, specially concurring:\n \n \n 22\n I agree with the majority opinion that the district court's dismissal of Advanta's conversion claim on the basis of the vendor's right of dissolution was erroneous. However, I cannot agree with the majority opinion that, to resolve this matter, we need only look to the Louisiana Civil Code (the \"Civil Code\"). On the contrary, Chapter 9 of the Louisiana Commercial Laws (\"Chapter 9\"), Louisiana's version of UCC Article 9, controls the outcome of this case. Accordingly, I concur in the judgment only.\n \n \n 23\n The majority opinion attempts to avoid the question at hand &#8212; whether Sugarland's rights under Articles 2013, 2016, and 2549 of the Civil Code, providing that a seller may, on its own initiative and without judicial authorization, deem a contract dissolved if the buyer fails to pay the agreed-upon purchase price,1 conflict with Advanta's rights as a good faith purchaser of chattel paper under the particular provisions of Chapter 9 dealing with sales of chattel paper and the priority of a chattel paper purchaser. To avoid answering this question, the majority opinion reasons that, under Article 2021 of the Civil Code, Advanta retains the rights in the RICs it acquired from Argo even if Sugarland was entitled to regard the assignment agreement between Sugarland and Argo as dissolved. The problem with this reasoning is that Article 2021 simply cannot apply where, as here, the contract at issue was never dissolved. Article 2021 provides that \"[d]issolution of a contract does not impair the rights acquired through an onerous contract by a third party in good faith.\" La. Civ.Code Art.2021 (emphasis added). From its plain text it is clear that, for Article 2021 to apply, there must first be a dissolved contract.2 However, contrary to Sugarland's contention, the assignment agreement at issue in this case &#8212; a credit sale between Sugarland and Argo &#8212; was never dissolved. Even though Articles 2013, 2016, and 2549 of the Civil Code generally permit a seller (such as Sugarland), on its own initiative and without judicial authorization, to deem a contract dissolved if a buyer (such as Argo) fails to pay the agreed-upon purchase price, the specific provisions of Chapter 9 dealing with sales of chattel paper and the priority of a chattel paper purchaser (discussed below) precluded Sugarland from unilaterally and extrajudicially dissolving the assignment agreement between it and Argo once Advanta had already purchased the RICs from Argo in good faith.\n \n \n 24\n In the context of this case, the specific provisions of Chapter 9 not only protect Advanta's ownership interest in the RICs against the competing claims of Argo's creditors, including Sugarland, but also displace the more general Civil Code provisions, found at Articles 2013, 2016, and 2549, addressing a seller's ability to unilaterally and extrajudicially deem a contract dissolved if the buyer fails to pay the agreed-upon purchase price. Under Chapter 9, the assignment agreement between Sugarland and Argo was a \"true sale\" of chattel paper, passing title in the RICs to Argo. See La. R.S. 10:9-109(e) (providing that the parties' characterization of a transaction as a sale of chattel paper is conclusive that the transaction is a \"true sale\" and that title has passed to the party characterized as the purchaser, regardless of any other term of the parties' agreement); La. R.S. 10:9-318(a) (providing that a seller of chattel paper retains no legal or equitable interest in the chattel paper sold).3 And, by paying for and taking possession of the RICs from Argo, Advanta perfected a Chapter 9 security interest in the RICs, thereby protecting its rights in the chattel paper from the competing rights of Argo's creditors, including Sugarland.4 Even assuming, arguendo, that Sugarland acquired a security interest in the RICs,5 Sugarland failed to perfect its security interest by retaining possession of the RICs pending Argo's payment or by filing a UCC-1 financing statement. See La. R.S. 10:9-313(a) (\"possession\" perfection of a security interest in chattel paper); La. R.S. 10:9-312(a) (\"filing\" perfection of a security interest in chattel paper). Thus, Advanta's perfected security interest in the RICs trumps any unperfected security interest Sugarland might have acquired. See La. R.S. 10:9-322(a)(2) (perfected security interest has priority over an unperfected security interest of a competing creditor).6 Because these particular provisions of Chapter 9 specifically address the sale of chattel paper and the priority of a good faith purchaser's rights in the purchased chattel paper over the competing claims of the seller's creditors, they displace &#8212; in this context &#8212; the more general provisions of the Civil Code, found at Articles 2013, 2016, and 2549, providing that a seller may, on its own initiative and without judicial authorization, deem a contract dissolved if the buyer fails to pay the agreed-upon purchase price. See La. R.S. 10:1-103 (\"Unless displaced by the particular provisions of this Title, the other laws of Louisiana shall apply.\"); La. R.S. 9:3192 (providing that, \"[i]n the case of conflict between the provisions of Title VII of Book III of the Civil Code, governing sales and any provisions of any special legislation, such as those contained in Titles 9 and 10 [the Louisiana UCC] of the Louisiana Revised Statutes of 1950 ... the latter shall prevail with regard to transactions subject thereto.\").7 Thus, Sugarland can not now claim that, even though Advanta purchased the RICs from Argo in good faith, Sugarland was entitled to unilaterally and extrajudicially deem the assignment agreement between it and Argo to be dissolved simply because Argo failed to pay it the agreed-upon purchase price.8\n \n \n 25\n For the foregoing reasons, I cannot agree with the majority opinion that, under Article 2021 of the Civil Code, Advanta retains the rights in the RICs that it acquired from Argo even if Sugarland was entitled to regard the assignment agreement between it and Argo as dissolved. Chapter 9 governs whether the assignment of RICs between Sugarland and Argo was effectual, and its specific provisions dealing with sales of chattel paper and the priority of a chattel paper purchaser precluded Sugarland from extrajudicially and unilaterally dissolving the assignment agreement between it and Argo once Advanta had already purchased the RICs from Argo in good faith.\n \n \n \n Notes:\n \n \n 1\n See La. Civ.Code Art. 2013 (\"When the obligor fails to perform, the obligee has a right to the judicial dissolution of the contract or, according to the circumstances, to regard the contract as dissolved. In either case, the obligee may recover damages. In an action involving judicial dissolution, the obligor who failed to perform may be granted, according to the circumstances, an additional time to perform.\"); La. Civ.Code Art. 2016 (\"When a delayed performance would no longer be of value to the obligee or when it is evident that the obligor will not perform, the obligee may regard the contract as dissolved without any notice to the obligor.\"); La. Civ.Code Art. 2549 (\"The buyer is bound to pay the price and to take delivery of the thing.\").\n \n \n 2\n As the majority opinion correctly acknowledges, Article 2021 \"assumes the dissolution and addresses its consequences.\"\n \n \n 3\n Both parties agree that the RICs in question are \"chattel paper\" under Chapter 9 of the Louisiana UCCSee La. R.S. 10:9-102(a)(11) (defining \"chattel paper\" as \"a record or records that evidence both a monetary obligation and a security interest in specific goods....\").\n \n \n 4\n Sugarland became Argo's creditor by virtue of its agreement to assign the RICs to Argo on a deferred payment basis, a transaction that is treated as a completed credit sale under Louisiana lawSee Succession of Dunham, 408 So.2d 888, 896-97 (La.1981) (explaining that, under Louisiana law, a conditional sale is treated as a completed credit sale, \"in which ownership of the object of the sale passes at the time the contract is entered into\"); see also In re Wallace Lincoln-Mercury, 469 F.2d 396, 402 (5th Cir.1972) (\"`[U]nder Lousiana law, a conditional sale whereby title is retained in the vendor is legally impossible, so the courts respect the contract but ignore the provision retaining title in the vendor.'\") (quoting Morelock v. Morgan &amp; Bird Gravel Co., 174 La. 658, 141 So. 368, 374 (1932)). As a result of this credit sale, Argo acquired rights in the RICs that are enforceable under Chapter 9 of the Louisiana UCC. See La. R.S. 10:9-109(e); La. R.S. 10:9-318(a). Likewise, when Advanta purchased the RICs from Argo, Advanta acquired rights in the RICs that are enforceable under Chapter 9. See La. R.S. 10:9-109(e); La. R.S. 10:9-318(a). As a good faith purchaser of the RICs, Advanta perfected its security interest in the RICs by taking possession of the signed originals, which were delivered to Advanta by Argo. See La. R.S. 10:9-313(a) (providing for \"possession\" perfection of a security interest in chattel paper).\n \n \n 5\n Arguably, the understanding between Sugarland and Argo, which made the initial sale of the RICs contingent upon Argo's payment of the purchase price, amounts to Argo's grant to Sugarland of a UCC security interest in the purchased RICs. Under La. R.S. 10:1-201(37), a seller's reservation of title to, or rights in, the purchased personal (movable) property, conditioned on the buyer's payment of the purchase price, may amount to the grant of an Chapter 9 security interest. However, as explained above, the transaction at issue was a \"true sale\" of chattel paper transferring title in the RICs to Argo under La.R.S. 10:9-109(e)\n \n \n 6\n According to Sugarland, the enforceability of Advanta's security interest in the RICs depends on the enforceability of the underlying principal obligation, since a security interest is generally considered to be an \"accessory\" obligation under the Louisiana Civil Code. On the contrary, the security interest of a chattel paper purchaser is not an \"accessory\" obligation, since it does not secure a debt or performance obligationSee La. Civ.Code. art. 1913 (\"A contract is accessory when it is made to provide security for the performance of an obligation. Suretyship, mortgage, pledge, and other types of security agreements are examples of such a contract.\"). Rather than securing a debt or performance obligation, a sale of chattel paper transfers title and ownership from the seller to the purchaser. See La.R.S. 10:9-109(e). Thus, Advanta's ownership interest in the RICs is not a secured interest in the traditional sense. See id. To conclude otherwise is to overlook that the Louisiana UCC draws a distinction between a chattel paper purchaser's security interest and a traditional security interest in personal property securing payment or performance of an obligation. See La. R.S. 10:1-201(37).\n \n \n 7\n The majority opinion notes, in a footnote, that \"the district court's conclusion that the vendor's right of dissolution does not conflict with any specific provision of Chapter 9 finds support in the writings of Louisiana's leading property law scholar.\" On the contrary, the section of the property law treatise cited by the majority opinion addresses only an unpaid vendor's right to demandjudicial dissolution of a contract under Article 2561. See A.N. Yiannopoulos, Property &#167; 233 n. 5 in La. Civ. Law Treatise (4th ed. 2001) (making clear that the \"vendor's right of dissolution\" discussed in &#167; 233 is the right to seek judicial dissolution, governed by La. Civ.Code. arts. 2561-2564). The majority opinion cites to no authority or case addressing an unpaid vendor's right to extrajudicially and unilaterally dissolve a contract under Articles 2013, 2016, and 2549 of the Civil Code, the articles which were cited by the district court as its basis for its summary-judgment dismissal of Advanta's tort claim against Sugarland.\n \n \n 8\n Sugarland also contends that, under &#167; 9-404(a) of the Louisiana UCC, Advanta's rights in the RICs are subject to any defense or claim arising from the transactions giving rise to the RICs, including Sugarland's defense that its assignments to Argo are dissolved because of Argo's failure to pay the purchase prices for eachSee La. R.S. 10:9-404(a). Sugarland's reliance on &#167; 9-404(a) is in error. That section provides that \"an assignee generally takes an assignment subject to the defenses and claims of an account debtor.\" La. R.S. 10:9-404 cmt. 2. In other words, &#167; 9-404(a) applies to claims and defenses an account debtor (the party obligated under an account or chattel paper) can assert against an assignee (the purchaser of accounts and chattel paper). See id. Here, Sugarland is not an account debtor; the Payment Obligors are the only account debtors. Therefore, &#167; 9-404(a) of the Louisiana UCC has no application to Sugarland's rights vis-a-vis Advanta, the second purchaser of the RICs.\n \n \n ", "ocr": false, "opinion_id": 31940 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
1,502,565
Franks, Goddard, Sanders
1983-02-24
false
smith-v-smith
null
Smith v. Smith
Rene SMITH Plaintiff-Appellee, v. Dr. H. Ron SMITH Defendant-Appellant
David F. Tucker, Jr., with Tucker & La-Porte, Elizabethton, for defendant-appellant., John K. Banks, with Street, Banks, Mer-ryman, Bautista & Banks, Elizabethton, for plaintiff-appellee.
null
null
null
null
null
null
null
Permission to Appeal Denied by Supreme Court April 18, 1983.
null
null
18
Published
null
<parties id="b88-3"> Rene SMITH Plaintiff-Appellee, v. Dr. H. Ron SMITH Defendant-Appellant. </parties><br><court id="b88-5"> Court of Appeals of Tennessee, Eastern Section. </court><br><decisiondate id="b88-6"> Feb. 24, 1983. </decisiondate><br><otherdate id="b88-7"> Permission to Appeal Denied by Supreme Court April 18, 1983. </otherdate><br><attorneys id="b88-20"> David F. Tucker, Jr., with Tucker &amp; La-Porte, Elizabethton, for defendant-appellant. </attorneys><br><attorneys id="b88-21"> John K. Banks, with Street, Banks, Mer-ryman, Bautista &amp; Banks, Elizabethton, for plaintiff-appellee. </attorneys>
[ "650 S.W.2d 54" ]
[ { "author_str": "Sanders", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n650 S.W.2d 54 (1983)\nRene SMITH Plaintiff-Appellee,\nv.\nDr. H. Ron SMITH Defendant-Appellant.\nCourt of Appeals of Tennessee, Eastern Section.\nFebruary 24, 1983.\nPermission to Appeal Denied April 18, 1983.\nDavid F. Tucker, Jr., with Tucker &amp; LaPorte, Elizabethton, for defendant-appellant.\nJohn K. Banks, with Street, Banks, Merryman, Bautista &amp; Banks, Elizabethton, for plaintiff-appellee.\nPermission to Appeal Denied by Supreme Court April 18, 1983.\n\nOPINION\nSANDERS, Judge.\nDefendant has appealed from a jury verdict holding the Plaintiff was the owner of an automobile titled in the name of the Defendant.\nThe Plaintiff-Appellee, Rene Smith, is the daughter of the Defendant-Appellant, Dr. H. Ron Smith. On Christmas day, 1979, Dr. Smith presented his daughter, Rene, with a 1980 model Honda Prelude automobile. Rene was 17 years of age and a senior in *55 high school. The car was presented by giving Rene a Christmas package containing the keys to the car, with a card that read, \"To Rene from Daddy. Be Careful.\" She was then escorted by Dr. Smith, her two brothers and a family friend to an automobile which was concealed in the garage with a big Christmas ribbon and bow on it and in the front license plate holder was the inscription, \"Rene.\" The automobile was turned over to Rene but the title to the car and the insurance were registered in Dr. Smith's name. The automobile remained in Rene's exclusive custody and control until July, 1981, when Dr. Smith went to the home where Rene was living and took possession of the car.\nSoon after Dr. Smith took possession of the automobile Rene filed suit in the circuit court for a writ of possession of the automobile. The case was tried before a jury on the question of the ownership of the automobile.\nOn the trial of the case it was the insistence of Dr. Smith that his presentation of the automobile to Rene was a conditional gift; she was to have the automobile to drive and if she fulfilled the conditions of the gift title would be transferred to her at age 21.\nIt was the insistence of Rene, however, that there were no conditions placed on the gift and it was unconditional. She testified her father had repeatedly promised to give her an automobile upon graduation from high school if she made good grades. She had a 3.8 grade average in high school and when the automobile was given to her there were no conditions attached. She testified the only thing her father told her was he didn't want to see any long-haired men driving the car. She testified that since the gift of the car Dr. Smith and her mother had divorced and there had been some family bitterness resulting from this. However, she had the exclusive possession of the automobile and Dr. Smith had exercised no control over it until he picked it up in July.\nIt was stipulated the title to the automobile was registered in the name of Dr. Smith. He testified he placed specific limitations on the use of the automobile and the title of the automobile was not to be transferred to Rene until she proved she could live up to these conditions. The conditions were that no one else was to drive the car; Rene was to keep the car properly maintained; her grades were to be kept up and she was not to use the car for dating. He explained that his reason for picking up the car was because he had seen other people driving it.\nMr. Ralph Bush, who was a friend of the family, testified he was present on Christmas day when the car was delivered and he heard Dr. Smith advise Rene of the conditions under which she was to use the automobile.\nDeVon Smith, brother of Rene, testified Dr. Smith gave him an automobile for Christmas two years before the one was given to Rene but he didn't get title to the car until he was 21.\nThe jury found the issues in favor of Rene. Dr. Smith's motion for a new trial was overruled and he has appealed.\nThe first issue raised in Appellant's brief is that \"the verdict of the jury is contrary to the law.\" This issue has been considered by our courts many times and is held to be too broad for consideration.\nThe second issue raised by Appellant is that \"the evidence in this cause preponderates in favor of the defendant and against the complainant.\" Under Rule 13(d) of the Tennessee Rules of Appellate Procedure, this court is required to affirm a judgment entered on a jury verdict if there is any material evidence to support the findings of the jury. We cannot weigh the evidence to determine the preponderance in a case such as this one. Truan v. Smith, 578 S.W.2d 73 (Tenn. 1979); Goodman v. Balthrop Constr. Co., 626 S.W.2d 21 (Tenn. App. 1981). A review of the record shows that there was material evidence from which the jury could have concluded that there was donative intent and a delivery of the car — the necessary elements of an inter vivos gift. See Figuers v. Sherrell, 181 Tenn. 87, 178 S.W.2d 629 (1944); Chandler *56 v. Roddy, 163 Tenn. 338, 43 S.W.2d 397 (1931); Arnoult v. Griffin, 490 S.W.2d 701 (Tenn. App. 1972).\nAppellant's next contention is that the trial court erred in denying his motion for a directed verdict made at the end of the Plaintiff's proof and again at the close of the evidence. Such a motion can be granted only when \"there is no material evidence in the record that would support a verdict for the plaintiff, under any of the theories advanced.\" Cecil v. Hardin, 575 S.W.2d 268, 270 (Tenn. 1978). \"A verdict should be directed only where a reasonable mind could draw but one conclusion.\" Crosslin v. Alsup, 594 S.W.2d 379, 380 (Tenn. 1980). Material issues of fact were raised by the proof in the present case and the denial of the motion for a directed verdict was proper. See Wharton Transp. Corp. v. Bridges, 606 S.W.2d 521. (Tenn. 1980).\nThe fourth issue raised by the Appellant is that \"the verdict was based on prejudice, passion and caprice.\" This issue is based on the Appellant's position that the certificate of title was conclusive proof of ownership, which will be addressed below. There is no indication in the record that any improper considerations entered into the verdict.\nAppellant's fifth issue on appeal is that the court erred in not charging the jury in accordance with four written special requests. Three of these requests are based on Appellant's erroneous belief that certificate of title is determinative of ownership; the fourth, which deals with the burden of proof, was contained in the charge of the court. Thus, the court did not err in refusing the special requests.\nThe most serious argument raised by Appellant is that the certificate of title made out to Dr. Smith was conclusive evidence of ownership under Tennessee Code Annotated §§ 55-3-103(a), -118, and XX-XX-XXX(10) (1980). The courts of this state have not interpreted these statutes in such a manner. It has been held a number of times by our courts that the intention of the parties, not the certificate of title, determines the ownership of an automobile. Couch v. Cockroft, 490 S.W.2d 713 (Tenn. App. 1972); Stevens v. State Farm Mut. Auto Ins. Co., 59 Tenn. App. 701, 443 S.W.2d 512 (1969); Mercado v. Travelers Ins. Co., 59 Tenn. App. 741, 443 S.W.2d 819 (1969); Hayes v. Hartford Accident &amp; Indemnity Co., 57 Tenn. App. 254, 417 S.W.2d 804 (1967). Under these cases a valid transfer of ownership of an automobile does not depend on compliance with the motor vehicle title laws, which were designed to deter trafficking in stolen cars. See Hayes v. Hartford Accident &amp; Indem. Co., supra.\nThe Appellant relies upon the case of Royal Indem. Co. v. Clingan, 364 F.2d 154 (6th Cir.1966) and First Southern Bank v. Clyde McCullough, an unreported case filed by the Middle Section of this court January 5, 1982, as supportive of his contention that registration of title is undisputable evidence of ownership.\nThe Royal Indem. Co. case was decided prior to a clear statement of the law in this jurisdiction and is out of harmony with our current decisions. The First Southern Bank case is distinguishable in that it involves the rights of a third party who extended credit in reliance on the certificate of title.\nThe issues are found in favor of the Appellee. The judgment of the trial court is affirmed and the cost of this appeal is taxed to the Appellant.\nGODDARD and FRANKS, JJ., concur.\n", "ocr": false, "opinion_id": 1502565 } ]
Court of Appeals of Tennessee
Court of Appeals of Tennessee
SA
Tennessee, TN
1,079,207
Judge Jerry Smith
2000-09-21
false
state-v-deborah-clark
null
State v. Deborah Clark
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/tcca/PDF/003/CLARKD~1.pdf", "author_id": 8290, "opinion_text": " IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE\n AT JACKSON\n\n STATE OF TENNESSEE v. DEBORAH DARLENE CLARK\n\n Direct Appeal from the Circuit Court for Madison County\n No. 98-522 Roger Page, Judge\n\n\n\n No. W1999-00893-CCA-R3-CD - Decided September 21, 2000\n\n\nThe defendant, Deborah Darlene Clark, was convicted by a Madison County jury of aggravated\nkidnapping, aggravated robbery, and criminal impersonation. In this appeal the defendant claims the\nevidence is insufficient to support the verdicts. The court finds the evidence clearly sufficient to\nsupport the convictions and thus affirms the judgment of the trial court.\n\n\nTenn. R. App. P. P. 3, Appeal as of Right; Judgment of the Circuit Court of Madison County\nis Affirmed\n\nSMITH, J., delivered the opinion of the court, in which WITT, J.,, and WEDEMEYER , J., joined.\n\nClifford K. McGown, Jr., Waverly, Tennessee, attorney for the appellant, Deborah Darlene Clark,\n(on appeal only)\nGeorge Morton George, District Public Defender, Jackson, Tennessee, attorney for the appellant,\nDeborah Darlene Clark, (at trial and of counsel on appeal)\n\nPaul G. Summers, Attorney General and Reporter, and J. Ross Dyer, Assistant Attorney General,\nattorneys for the appellee, State of Tennessee\n\n OPINION\n\n Factual Background\n On March 18, 1998, Kenneth Williams, a seventeen-year-old who lived with his parents in\nBeech Bluff, Tennessee, was alone at a fast-food restaurant in Jackson, Tennessee. Mr. Williams\nwas getting out of his truck when he was approached by the defendant and her accomplice. The\ndefendant’s accomplice, an unidentified male, pushed Mr. Williams back into his car and told him\nto “scoot over.” Mr. Williams did so, and the defendant got in the driver’s seat of the truck. The\ndefendant also took Williams’ keys. The accomplice then went around the truck and sat in the\npassenger’s seat. Mr. Williams was between the two assailants. The defendant demanded money,\nand Mr. Williams replied that he only had five (5) dollars. The assailants took the five (5) dollars,\nand told Mr. Williams to go to the bank to get more money. The defendant said that he did not have\na bank account, but that he could get money from his parents’ house.\n\f The defendant drove Mr. Williams to his parents’ house. While the trio was en route, the\ndefendant and her accomplice threatened to kill Mr. Williams several times if he did not cooperate.\nThe defendant left her accomplice in the vehicle while she accompanied Mr. Williams in the house.\nOnce inside, the defendant told Mr. Williams’s parents that she was an undercover police officer,\nand that she had taken custody of their son after he had tried to solicit the defendant. She then\nimplied that she would release Mr. Williams if his parents would give her money. Mr. Williams’s\nmother asked where her son’s truck was, and the defendant replied that another officer was outside\nin the truck. Mr. Williams’s mother then asked the defendant to bring the other officer into the\nhouse, but the defendant refused. The defendant told Mr. Williams’s parents that Mr. Williams\nwould have to accompany her to the police station, and she took him back to the car.\n Mr. Willams’s father immediately followed his son and the defendant. The defendant, her\naccomplice, and Mr. Williams drove away from the house, and Mr. Williams’s father tried to follow\nthem. He could not keep up with the defendant, however, and he lost them.\n The defendant and her accomplice then drove Mr. Williams back to Jackson. While en route,\nthey threatened to kill Mr. Williams again. While stopped at a stop sign, Williams noticed a police\ncar close by. He attempted to reach over and honk the horn and flash the lights, but the defendant’s\naccomplice pulled him back into his seat before the police officer noticed. The defendant then drove\nbehind the juvenile detention center and stopped the car. The defendant’s accomplice then demanded\nthat Mr. Williams give them all of his valuables. He told them to take anything they wanted, and\nhe gave them his wallet. The defendant and her accomplice then tried to pry open a tool box in the\nback of the truck, but they were unsuccessful. While they tried to pry open the tool box, Williams\nran away from the vehicle to a local store, where he called the police. The defendant and her\naccomplice got away, but not before stealing the contents of Mr. Williams’s wallet, the faceplate to\nhis car stereo, and, inexplicably, one of the floor mats from the truck.\n The defendant contradicted Mr. Williams’s testimony. She testified that Mr. Williams\nsolicited her for sex, and that she refused. She did get into Mr. Williams’s truck with him, however,\nbecause she wanted to borrow twenty (20) dollars. Although Mr. Williams said he only had five (5)\ndollars with him, he told her that he could get more money at home. The defendant asked Mr.\nWilliams his age, and he told her he was seventeen (17) years old. This worried the defendant,\nbecause her own son had died when he was seventeen (17). She decided to make sure Mr. Williams\ngot home safely, so she told him she was an undercover police officer, and she wanted to go to his\nparents’ house. The defendant thought that telling Mr. Williams that she was an undercover police\nofficer was the only way that he would tell her his address. She stopped to pick up a friend, because\nshe was afraid the truck would break down, and the three of them drove to Mr. Williams’s parents’\nhouse.\n When they got to Mr. Williams’s parents’ house, the defendant told Mr. Williams’s parents\nthat she was an undercover police officer and that Mr. Williams had solicited her for sex. After that,\nthe defendant decided that her good deed was accomplished, and that she would like to go back to\nJackson. Mr. Williams took her back to Jackson, and the trio drove near the Criminal Justice Center.\nThe defendant began to lecture Mr. Williams about the dangers of solicitation of prostitutes\nwhereupon Mr. Williams jumped out of the truck for no reason. This frightened the defendant, and\nshe left. She denied having a weapon, threatening Mr. Williams or taking any of his valuables.\n Following the trial, the defendant was convicted of aggravated kidnapping, aggravated\n\n\n -2-\n\frobbery, and criminal impersonation. The court sentenced her to eight years for the aggravated\nrobbery, eight years for the aggravated kidnapping, and six months for the criminal impersonation,\nall to be served concurrently to each other.\n\n Sufficiency\n When an appellant challenges the sufficiency of the evidence, this court is obliged to review\nthat challenge according to certain well-settled principles. Where the sufficiency of the evidence is\ncontested on appeal, the relevant question for the reviewing court is whether any rational trier of fact\ncould have found the accused guilty of every element of the offense beyond a reasonable doubt.\nTenn. R. App. P. 13(e); State v. Harris, 839 S.W.2d 54, 75 (Tenn. 1992). On appeal, the state is\nentitled to the strongest legitimate view of the evidence as well as all reasonable and legitimate\ninferences that may be drawn therefrom. State v. Cabbage, 571 S.W.2d 832, 835 (Tenn. 1978). In\nconducting our evaluation of the convicting evidence, this Court is precluded from reweighing or\nreconsidering the evidence. State v. Morgan, 929 S.W.2d 380, 383 (Tenn. Crim. App. 1996); State\nv. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).\n A verdict of guilty by the jury, approved by the trial judge, accredits the testimony of the\nstate's witnesses and resolves all conflicts in the testimony in favor of the state. State v. Cazes, 875\nS.W.2d 253, 259 (Tenn. 1994); Harris, 839 S .W.2d at 75. Although an accused is originally cloaked\nwith a presumption of innocence, a jury verdict removes this presumption and replaces it with one\nof guilt. State v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). Hence, on appeal, the burden of proof\nrests with Appellant to demonstrate the insufficiency of the convicting evidence. Id.\n The defendant argues that “the jury and the trial court erred in accrediting the testimony of\nMr. Williams and his parents over that of Ms. Clark.” However, the appellant is asking this court\nto reweigh the evidence. As stated above, this we may not do. Cabbage, 571 S.W.2d at 835. We\nmay only determine if the jury had sufficient evidence to determine whether the defendant committed\nthe crime.\n Aggravated kidnapping is defined as “false imprisonment, as defined in [Tenn. Code. Ann.]\n§ 39-13-302, committed . . . (5) [w]hile the defendant is in possession of a deadly weapon or\nthreatens the use of a deadly weapon.” Tenn. Code Ann. § 39-13-304. Section 39-13-302 defines\nfalse imprisonment as “knowingly remov[ing] or confin[ing] another unlawfully so as to interfere\nsubstantially with another’s liberty.” Tenn. Code. Ann. § 39-13-302. In this case, Mr. Williams\ntestified that the defendant and her accomplice forced Mr. Williams into his truck and threatened his\nlife. Mr. Williams also testified that the defendant said she had a gun and made him feel a gun in\nher waistband. The defendant and her accomplice then drove Mr. Williams, against his will, to his\nparent’s house. The defendant then forced Mr. Williams to leave his parent’s house, and drove him\nto the juvenile justice center, where he escaped. In short, the testimony established that the\ndefendant knowingly confined Mr. Williams and interfered with his liberty, and that she did so by\nthreatening to use a gun. The evidence was sufficient to support an aggravated kidnapping charge.\n Aggravated robbery is defined as “the intentional or knowing theft of property from the\nperson of another by putting the person in fear . . . accomplished with a deadly weapon or by display\nof any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon .\n. . .” Tenn. Code Ann. §§ 39-13-401, 39-13-402(a)(1). In this case, Mr. Williams testified that the\ndefendant and her accomplice forced him to give them five (5) dollars. Later, the victim the\n\n -3-\n\fdefendant made Mr. Williams feel a gun in her waistband, Then, near the end of the encounter, the\ndefendant and her accomplice took the other contents of the wallet, a stereo faceplate, and a floor\nmat. Although the five dollars was taken before the defendant made Mr. Williams feel a weapon,\nthe rest of the items were taken while Mr. Williams reasonably believed that the defendant had a gun\nand intended to use it. The evidence was sufficient to support an aggravated robbery charge.\n Criminal impersonation is defined as “[p]retend[ing] to be an officer or employee of the\ngovernment . . . with the intent to injure or defraud another person.” The victim and both of his\nparents testified that the defendant pretended to be an undercover police officer and that she tried\nto obtain a bribe from the defendant’s parents as an undercover officer, although she was not and\nnever had been a police officer. The evidence was sufficient to support a conviction of criminal\nimpersonation.\n After viewing the evidence in the light most favorable to the state, we conclude that the state\npresented sufficient evidence for a rational trier of fact to convict the appellant of aggravated\nkidnapping, aggravated robbery, and criminal impersonation.\nThis issue has no merit.\n Accordingly, the judgment of the trial court is AFFIRMED.\n\n\n\n\n -4-\n\f", "ocr": false, "opinion_id": 1079207 } ]
Court of Criminal Appeals of Tennessee
Court of Criminal Appeals of Tennessee
SA
Tennessee, TN
1,670,543
null
2008-06-11
false
winter-v-rosenboom-mach-tool-inc
Winter
Winter v. ROSENBOOM MACH. & TOOL, INC.
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "755 N.W.2d 143" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n755 N.W.2d 143 (2008)\nWINTER\nv.\nROSENBOOM MACH. &amp; TOOL, INC.\nNo. 07-1515.\nCourt of Appeals of Iowa.\nJune 11, 2008.\nDecision without published opinion. Affirmed.\n", "ocr": false, "opinion_id": 1670543 } ]
Court of Appeals of Iowa
Court of Appeals of Iowa
SA
Iowa, IA
1,900,211
Armentano, Healey, Peters, Shea, Speziale
1982-01-19
false
william-pitt-inc-v-taylor
Taylor
William Pitt, Inc. v. Taylor
William Pitt, Inc., Et Al. v. Charles G. Taylor Et Al.
Allan P. Cramer, with whom was Anthony E. Ahern, for the appellants (plaintiffs)., Thomas J. Bosati, for the appellees (defendants).
null
null
null
null
null
null
null
Argued December 2, 1981
null
null
14
Published
null
<parties data-order="0" data-type="parties" id="b94-4"> William Pitt, Inc., et al. <em> v. </em> Charles G. Taylor et al. </parties><br><p data-order="1" data-type="judges" id="b94-6"> Speziale, C. J., Peters, Healey, Armentano and Shea, Js. </p><br><otherdate data-order="2" data-type="otherdate" id="b94-8"> Argued December 2, 1981 </otherdate><decisiondate data-order="3" data-type="decisiondate" id="AX9"> —decision released January 19, 1982 </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b94-10"> <em> Allan P. Cramer, </em> with whom was <em> Anthony E. Ahern, </em> for the appellants (plaintiffs). </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b94-11"> <em> Thomas J. Bosati, </em> for the appellees (defendants). </attorneys>
[ "186 Conn. 82" ]
[ { "author_str": "Peters", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3984, "opinion_text": "\n186 Conn. 82 (1982)\nWILLIAM PITT, INC., ET AL.\nv.\nCHARLES G. TAYLOR ET AL.\nSupreme Court of Connecticut.\nArgued December 2, 1981.\nDecision released January 19, 1982.\nSPEZIALE, C. J., PETERS, HEALEY, ARMENTANO and SHEA, JS.\nAllan P. Cramer, with whom was Anthony E. Ahern, for the appellants (plaintiffs).\nThomas J. Rosati, for the appellees (defendants).\nPETERS, J.\nThis is an action to recover a real estate commission in accordance with the terms of a listing agreement between the plaintiff, William Pitt, Inc., a broker,[1] and the defendants, Charles G. Taylor and Helen T. Taylor, the owners of certain real estate in Stamford. The defendants filed a motion for summary judgment which the trial court granted. The plaintiffs have appealed.\n*83 The trial court's memorandum of decision and the record reveal the following facts. The parties signed a listing contract on September 28, 1977, in which the named plaintiff agreed to procure a buyer for real property at 1006 Westover Road, Stamford, for the price of $172,000 or \"on such other terms and conditions as shall be acceptable to the said owner.\"[2] The broker submitted an undated written offer to purchase in the amount of $147,300, which the defendants allegedly accepted orally. The defendants never signed a written contract with the buyers whom the broker had procured.\nThe trial court granted the defendants' motion for summary judgment on the basis that the plaintiffs had failed to meet the requirements of General Statutes § 20-325a. That statute requires a listing contract to be an agreement which is dated and signed by the parties thereto.[3]Revere Real Estate, Inc. v. Cerato, 186 Conn. 74, 77, 438 A.2d 1202 (1982); Thornton Real Estate, Inc. v. Lobdell, 184 Conn. 228, 229-30, 439 A.2d 947 (1981); Hossan v. Hudiakoff, 178 Conn. 381, 382, 423 A.2d 108 (1979). *84 The trial court held that the statute's requirements pertained not only to the listing contract, but also to the sales contract, and that the plaintiffs could not recover a commission without producing a dated contract of sale signed by the defendants. In this conclusion it was in error.\nAs we have noted in Revere Real Estate, Inc. v. Cerato, supra, the employment contract between a broker and an owner of real property, the listing contract, is an undertaking separate and apart from the sales contract between a seller and buyer of real property. Listing contracts are governed exclusively by § 20-325a; such contracts do not fall within our statute of frauds. Brazo v. Real Estate Commission, 177 Conn. 515, 522, 418 A.2d 883 (1979); Stagg v. Lawton, 133 Conn. 203, 209, 49 A.2d 599 (1946); Cone v. Pedersen, 131 Conn. 374, 377-78, 40 A.2d 274 (1944). The writing required by § 20-325a pertains only to the listing contract and not to the sales contract. If the broker and the owner have entered into a valid, written listing contract in conformity with the requirements of § 20-325a, the broker is entitled to a commission upon whatever terms the listing contract stipulates. The broker and the owner may agree, by the terms of the listing contract, that the broker is not entitled to a commission until a written sales contract has been signed or consummated, but a listing contract which is not so limited is equally binding. Revere Real Estate, Inc. v. Cerato, supra; Walsh v. Turlick, 164 Conn. 75, 80, 316 A.2d 759 (1972). The parties may provide, in the listing contract, that the broker will have earned his commission, in advance of the execution of a sales contract, by procuring a purchaser who is ready, willing, and able to buy upon *85 terms and conditions acceptable to the owner. See Lavitt v. Aberle, 144 Conn. 723, 724, 138 A.2d 318 (1957); Finch v. Donella, 136 Conn. 621, 626, 73 A.2d 336 (1950). Nothing in § 20-325a forbids the negotiation of such terms in a listing contract. Such terms were apparently negotiated by the parties in this case.\nThe trial court was therefore in error in granting summary judgment to the defendants on the basis of § 20-325a. Since there was a genuine issue of material fact between the parties; Practice Book § 384; Rusco Industries, Inc. v. Hartford Housing Authority, 168 Conn. 1, 5-6, 357 A.2d 484 (1975); United Oil Co. v. Urban Redevelopment Commission, 158 Conn. 364, 378-80, 260 A.2d 596 (1969); the case was not ready to be resolved by summary judgment. The parties were in disagreement about a crucial issue, whether the defendants had in fact orally accepted the offer to purchase their property. The trial court made no ruling whatsoever on this issue. The plaintiffs are entitled to the opportunity to present whatever evidence they may be able to muster on a matter so central to their theory of recovery. If any other issues develop at trial, they too deserve to be aired; nothing said herein should be taken as an indication that we are limiting further proceedings to this one issue only.\nThere is error, the judgment for the defendants is set aside and the case is remanded for further proceedings consistent with this opinion.\nIn this opinion the other judges concurred.\nNOTES\n[1] Gale Schroder was also named as plaintiff, but the record does not reveal any diversity of interest between Schroder and the named plaintiff.\n[2] Although the trial court's memorandum of decision describes the listing agreement as conferring authority to sell the property \"at $172,000,\" there does not appear to be any dispute that the listing agreement, which was attached to the motion for summary judgment, in fact contains additional language permitting variation in the price term with the owner's consent.\n[3] General Statutes § 20-325a provides, in relevant part: \"(b) No person, licensed under the provisions of this chapter, shall commence or bring any action in respect of any acts done or services rendered after October 1, 1971, as set forth in subsection (a), unless such acts or services were rendered pursuant to a contract or authorization from the person for whom such acts were done or services rendered. To satisfy the requirements of this subsection any such contract or authorization shall (1) be in writing, (2) contain the names and addresses of all the parties thereto, (3) show the date on which such contract was entered into or such authorization given,\n\n(4) contain the conditions of such contract or authorization and\n(5) be signed by the parties thereto.\"\n\n", "ocr": false, "opinion_id": 1900211 } ]
Supreme Court of Connecticut
Supreme Court of Connecticut
S
Connecticut, CT
810,075
null
2012-10-15
false
united-states-v-bobby-jordan
null
United States v. Bobby Jordan
null
null
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/127053.U.pdf", "author_id": null, "opinion_text": " UNPUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 12-7053\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nBOBBY MICHAEL JORDAN,\n\n Defendant - Appellant.\n\n\n\nAppeal from the United States District Court for the Middle\nDistrict of North Carolina, at Greensboro. N. Carlton Tilley,\nJr., Senior District Judge. (1:04-cr-00357-NCT-1)\n\n\nSubmitted: October 11, 2012 Decided: October 15, 2012\n\n\nBefore KING, DUNCAN, and DIAZ, Circuit Judges.\n\n\nAffirmed by unpublished per curiam opinion.\n\n\nBobby Michael Jordan, Appellant Pro Se. Robert Michael\nHamilton, Angela Hewlett Miller, Assistant United States\nAttorneys, Greensboro, North Carolina, for Appellee.\n\n\nUnpublished opinions are not binding precedent in this circuit.\n\fPER CURIAM:\n\n Bobby Michael Jordan appeals the district court’s\n\norder denying his motion for reduction of sentence, pursuant to\n\n18 U.S.C. § 3582(c) (2006). We have reviewed the record and\n\nfind no abuse of discretion by the district court. Accordingly,\n\nwe affirm for the reasons stated by the district court. United\n\nStates v. Jordan, No. 1:04-cr-00357-NCT-1 (M.D.N.C. May 25,\n\n2012). We dispense with oral argument because the facts and\n\nlegal contentions are adequately presented in the materials\n\nbefore the court and argument would not aid the decisional\n\nprocess.\n\n\n\n AFFIRMED\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 810075 } ]
Fourth Circuit
Court of Appeals for the Fourth Circuit
F
USA, Federal
1,528,828
A.D. Kahn
1985-06-20
false
first-georgia-bank-v-halpern-in-re-halpern
In re Halpern
First Georgia Bank v. Halpern (In Re Halpern)
In the Matter of Howard I. HALPERN, Debtor. FIRST GEORGIA BANK, Plaintiff, v. Howard I. HALPERN, Defendant
Mary Grace Diehl, Troutman, Sanders, Lockerman & Ashmore, Atlanta, Ga., for plaintiff., Mark S. Marani, Zusmann, Small & Stamps, Atlanta, Ga., for defendant.
null
null
null
null
null
null
null
null
null
null
12
Published
null
<parties id="b314-8"> In the Matter of Howard I. HALPERN, Debtor. FIRST GEORGIA BANK, Plaintiff, v. Howard I. HALPERN, Defendant. </parties><br><docketnumber id="b314-13"> Bankruptcy No. 84-02442A. </docketnumber><docketnumber id="AeH"> Adv. No. 84-0586A. </docketnumber><br><court id="b314-15"> United States Bankruptcy Court, N.D. Georgia, Atlanta Division. </court><br><decisiondate id="b314-18"> June 20, 1985. </decisiondate><br><attorneys id="b315-4"> <span citation-index="1" class="star-pagination" label="261"> *261 </span> Mary Grace Diehl, Troutman, Sanders, Lockerman &amp; Ashmore, Atlanta, Ga., for plaintiff. </attorneys><br><attorneys id="b315-5"> Mark S. Marani, Zusmann, Small &amp; Stamps, Atlanta, Ga., for defendant. </attorneys>
[ "50 B.R. 260" ]
[ { "author_str": "Kahn", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n50 B.R. 260 (1985)\nIn the Matter of Howard I. HALPERN, Debtor.\nFIRST GEORGIA BANK, Plaintiff,\nv.\nHoward I. HALPERN, Defendant.\nBankruptcy No. 84-02442A, Adv. No. 84-0586A.\nUnited States Bankruptcy Court, N.D. Georgia, Atlanta Division.\nJune 20, 1985.\n*261 Mary Grace Diehl, Troutman, Sanders, Lockerman &amp; Ashmore, Atlanta, Ga., for plaintiff.\nMark S. Marani, Zusmann, Small &amp; Stamps, Atlanta, Ga., for defendant.\n\nMEMORANDUM OF OPINION AND ORDER\nA.D. KAHN, Bankruptcy Judge.\nThis adversary proceeding is before the court on the motion of the Plaintiff, FIRST GEORGIA BANK (BANK), for summary judgment. The BANK, a judgment creditor of the Debtor and Defendant herein, HOWARD I. HALPERN (HALPERN), alleges that HALPERN engaged in a checkkiting scheme to defraud the BANK and seeks a determination that the judgment debt is nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6). Section 523(a) excepts from discharge any debt\n(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by—\n(A) false pretenses, a false representation, or actual fraud, . . . [or]\n(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny; [or]\n(6) for willful and malicious injury by the debtor to another entity or to the property of another entity.\nThe record shows that the BANK sued HALPERN in the State Court of Fulton County alleging that HALPERN was liable \"for money had and received.\" Later the BANK amended its complaint to allege \"fraud\" and, still later, to allege that HALPERN'S conduct was \"willful and wanton and in gross disregard for the BANK'S rights.\" The state court action culminated in a consent order in which the BANK obtained a judgment against HALPERN in the amount of $337,000. The consent order contains numerous findings of fact, the gist of which is that HALPERN devised and executed a scheme to defraud the BANK for the purpose of obtaining cash, bank obligations, and deposit credits. The language in the judgment appears to have been drafted to show that HALPERN'S conduct meets the standards for nondischargeability in section 523. HALPERN concedes as much in the order:\n[HALPERN] recognizes that these Findings of Fact and Conclusions of Law will conclusively establish that the liability which he is adjudged in this Civil Action to owe to [the BANK] will be exempted from discharge in any bankruptcy case in which he is a debtor. This is because these Findings of Fact and Conclusions of Law show, among other things, that [HALPERN'S] liability to [the BANK] is (a) for obtaining money or property by false pretenses, false representations, and actual fraud, (b) for fraud and defalcation while action in a fiduciary capacity, and (c) for willful and malicious injury by [HALPERN] to [the BANK'S] property.\nFirst Georgia Bank v. Howard I. Halpern, et al., Civil Action File No. 453152 (State Ct. Fulton County, Ga., March 15, 1983) (Beasley, J.). The consent order further recites that HALPERN does not intend to seek a discharge in bankruptcy as to the judgment.\nThe judgment also includes a finding that identical facts and conduct are the subject of a federal criminal indictment to which HALPERN pleaded guilty.\nThe thrust of the BANK'S motion for summary judgment is that factual findings contained in the state court judgment are the same facts which gave rise to the complaint in this proceeding and which constitute grounds for nondischargeability. Accordingly, the BANK argues that the factual issues presented by its complaint have already been fully litigated and resolved in the prior action and that HALPERN is *262 collaterally estopped from relitigating these matters before the bankruptcy court. The BANK asserts that, in light of the state court's findings, there are no genuine issues of fact remaining and asks this court to declare the judgment debt nondischargeable as a matter of law.\nHALPERN contends that the consent judgment is a fiction to which collateral estoppel cannot apply. He argues that the effect of collateral estoppel would preclude litigation of the merits, would allow an impermissible waiver of discharge by the debtor, and would divest this court of its exclusive authority to determine the dischargeability of debts in bankruptcy. Finally, HALPERN asserts that summary judgment is inappropriate as the court is required to look at the entire record, including matters extrinsic to the judgment, in determining the dischargeability of the debt.\nThe doctrine of collateral estoppel bars relitigation of factual issues which were actually litigated and necessary to the outcome in an earlier suit. The question presented here is what preclusive effect should be given to the state court consent judgment by this court in determining whether or not the judgment debt is dischargeable. For the reasons set forth below, the court concludes that under the circumstances of this case, collateral estoppel effect should be given to the factual findings of the state court and, in the absence of contrary evidence, the court finds that these facts require the legal conclusion that the judgment debt is not dischargeable.\nThis court is not bound by the state court judgment and is not barred by collateral estoppel from conducting its own inquiry into the character and, ultimately, the dischargeability of the subject debt. See Carey Lumber Co. v. Bell, 615 F.2d 370, 377 (5th Cir.1980). Policy considerations dictate that dischargeability questions cannot be predetermined either by a state court or by agreement of the parties prior to or in anticipation of the possible filing of a bankruptcy case. Whether or not a debt is dischargeable is a legal conclusion based on facts of each case and the bankruptcy court has the exclusive jurisdiction to make that conclusion. Spilman v. Harley, 656 F.2d 224, 227 (6th Cir.1981) (emphasis added). Therefore, those provisions of the consent order in which HALPERN promised to forgo a discharge and agreed that the debt was nondischargeable are completely without legal effect.\nNevertheless, this court may not redetermine all of the underlying facts in the state court case. To do so would do violence to judicial finality, a fundamental tenant of our judicial system. Franks v. Thomason, 4 B.R. 814, 820-21 (N.D.Ga.1980). This court may invoke collateral estoppel to preclude relitigation of the facts actually and necessarily litigated in the state court action, and that are discernible from the record, without surrendering its exclusive jurisdiction over the dischargeability question. These facts then can properly be considered as evidence of nondischargeability. Id. at 821.\nThis court must tailor its application of collateral estoppel to the circumstances of the case before it. Id. at 821. HALPERN contends that collateral estoppel does not apply to consent judgments. He argues that because the facts in question were never presented to a judge or jury for adjudication they were not \"actually litigated\"; that the allegations of fraud in the amended complaint and the facts and conclusions recited in the judgment were inserted merely to foreclose him from seeking relief under the bankruptcy laws; and that it is impossible to determine what legal standard was used by the state court and therefore it is impossible to determine if that standard comports with the federal dischargeability standard. In short, HALPERN would require that every case be \"tried\" in order for its findings to have preclusive value. This Court does not agree. There is no unfairness in applying collateral estoppel in this proceeding. The court is not concerned here with a default judgment or a bare verdict. To the contrary, here there are detailed and carefully *263 drawn findings of fact from which the court can discern whether or not they satisfy the elements of dischargeability under bankruptcy law.\nHALPERN maintains that he entered the settlement only because of financial difficulties. However, there are no allegations of coercion or duress in the record to indicate that he signed other than voluntarily. He had the benefit of able counsel and he, as well as his attorney, signed the judgment. There is no reason to conclude that HALPERN'S interest in the direction and outcome of the state court litigation was less than his interest in this proceeding. HALPERN simply chose not to exercise his option to actually try the case. He therefore cannot now argue that the lack of a contested trial renders the detailed and precise facts to which he agreed insufficient for preclusive purposes. A chilling effect on consent judgments and settlements might result if the court were to ignore such a clear and unambiguous expression of the parties' intent.\nMore importantly, HALPERN has not denied any of the facts to which he agreed in the consent judgment. The court notes that, although HALPERN correctly insists that the court consider relevant evidence outside the consent judgment, he has proffered no additional evidence, by way of affidavit, or otherwise, for the court's consideration.\nTurning to the substance of the state court's findings, the basis of the judgment, as agreed to by the parties, was that HALPERN'S acts and conduct were willful, malicious and intentional, and designed solely for the purpose of fraudulently deceiving the BANK. The findings detail the following factual issues: (1) that the fraud was committed by material misrepresentations that HALPERN made to the BANK, (2) with knowledge that they were false and with intent to deceive, (3) that the BANK reasonably relied thereon and (4) was damaged thereby. These findings contain all of the elements necessary for a determination of nondischargeability under 11 U.S.C. § 523(a)(2)(A). It is therefore not necessary to apply the facts to the two other statutory provisions under which the BANK sues.\nIt is also not necessary for the court to determine the preclusive effect of the criminal indictment and HALPERN'S guilty plea which are recited in the state court judgment, although there is authority for so doing. See Raiford v. Abney, 695 F.2d 521 (11th Cir.1983). It would be unfair to so hold in this case, however, as the court does not have the criminal record before it. The undisputed fact of the indictment and conviction, however, tends to support the accuracy of the other recitations in the civil consent order.\nThis court must still determine the ultimate question of dischargeability. The record shows a federally nondischargeable basis for the judgment debt. As noted previously, HALPERN has made no opposing showing. He cannot, on summary judgment, merely assert that fact questions exist without demonstrating such questions to the court. The court must therefore accept the recitations in the state court judgment as true. Therefore no issue of fact exists and this court finds that the recitations of the consent judgment require the legal conclusion that the judgment debt is nondischargeable.\n\nORDER\nIn accordance with the reasoning above, it is the Order of the Court that the Plaintiff's Motion for Summary Judgment be, and the same hereby is, Granted, and the debt is determined to be NONDISCHARGEABLE.\nIT IS SO ORDERED.\n", "ocr": false, "opinion_id": 1528828 } ]
N.D. Georgia
United States Bankruptcy Court, N.D. Georgia
FB
Georgia, GA
34,039
Davis, Higginbotham, Per Curiam, Prado
2004-02-04
false
goff-v-soundolier-division-of-american-trading-production-corp
Goff
Goff v. Soundolier Division of American Trading & Production Corp.
Gladys Marie GOFF Plaintiff-Appellant, v. SOUNDOLIER DIVISION OF AMERICAN TRADING AND PRODUCTION CORPORATION Defendant-Appellee
Gladys Marie Goff, pro se, Bardwell, TX, for Plaintiff-Appellant., David A. Scott, Jackson, Lewis, Schnitzler & Krupman, Dallas, TX, for Defendant-Appellee.
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
<parties data-order="0" data-type="parties" id="b750-7"> Gladys Marie GOFF Plaintiff—Appellant, v. SOUNDOLIER DIVISION OF AMERICAN TRADING AND PRODUCTION CORPORATION Defendant—Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b750-9"> No. 03-10638. </docketnumber><br><p data-order="2" data-type="misc" id="b750-10"> Summary Calendar </p><br><court data-order="3" data-type="court" id="b750-11"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate data-order="4" data-type="decisiondate" id="b750-13"> Feb. 4, 2004. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b750-15"> Gladys Marie Goff, pro se, Bardwell, TX, for Plaintiff-Appellant. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b750-16"> David A. Scott, Jackson, Lewis, Schnitzler &amp; Krupman, Dallas, TX, for Defendant-Appellee. </attorneys><br><p data-order="7" data-type="judges" id="b750-17"> Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges. </p>
[ "86 F. App'x 720" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\03/03-10638.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n UNITED STATES COURT OF APPEALS\n For the Fifth Circuit February 4, 2004\n\n Charles R. Fulbruge III\n Clerk\n No. 03-10638\n Summary Calendar\n\n\n\n\n GLADYS MARIE GOFF\n\n Plaintiff - Appellant\n\n\n VERSUS\n\n\n SOUNDOLIER DIVISION OF AMERICAN TRADING AND PRODUCTION\nCORPORATION\n\n\n Defendant - Appellee\n\n\n\n Appeal from the United States District Court\n For the Northern District of Texas\n 3:98-CV-2254\n\n\n\n\nBefore HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.\n\nPER CURIAM:*\n\n Plaintiff, Gladys Marie Goff, filed this action against\n\ndefendant seeking relief for employment discrimination. The\n\ndistrict court dismissed Golf’s action with prejudice on February\n\n15, 2001 and entered final judgment that same date. Goff filed her\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the Court has determined that this\nopinion should not be published and is not precedent except under\nthe limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\fnotice of appeal more than two years later on June 25, 2003.\n\nBecause Goff’s notice of appeal from the February 15, 2001 judgment\n\nwas untimely this court has no jurisdiction to review that order.\n\nGoff then filed a motion for leave to reinstate her complaint on\n\nFebruary 14, 2003. The district court treated that motion as a\n\nmotion for relief under Rule 60(b)F.R.C.P. and denied the motion on\n\nJune 19, 2003. Goff filed a timely appeal from that order.\n\n After reviewing the record and the briefs of the parties we\n\nare satisfied that the district court did not abuse its discretion\n\nin denying Goff’s Rule 60(b) motion.\n\n AFFIRMED.\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 34039 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
2,574,929
null
2007-01-30
false
kinstel-v-dist-ct
Kinstel
Kinstel v. Dist. Ct.
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "210 P.3d 743" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n210 P.3d 743 (2007)\nKINSTEL\nv.\nDIST. CT. (WILSON).\nNo. 48191.\nSupreme Court of Nevada.\nJanuary 30, 2007.\nDecision without published opinion. Petition Granted.\n", "ocr": false, "opinion_id": 2574929 } ]
Nevada Supreme Court
Nevada Supreme Court
S
Nevada, NV
470,518
null
1986-05-12
false
santee-v-heckler
Santee
Santee v. Heckler
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "791 F.2d 920" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/791/791.F2d.920.85-1730.html", "author_id": null, "opinion_text": "791 F.2d 920\n Santeev.Heckler\n 85-1730\n United States Court of Appeals,Third Circuit.\n 5/12/86\n \n E.D.Pa.,\n McGlynn, J.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 470518 } ]
Third Circuit
Court of Appeals for the Third Circuit
F
USA, Federal
810,308
Clifton, Silverman, Smith
2012-10-15
false
united-states-v-jesus-sanchez-carranza
null
United States v. Jesus Sanchez-Carranza
UNITED STATES of America, Plaintiff-Appellee, v. Jesus SANCHEZ-CARRANZA, Defendant-Appellant
Anthony G. Hall, Esquire, Office of the U.S. Attorney, Boise, ID, Michael J. Fica, USPO — Office of the U.S. Attorney, Poca-tello, ID, for Plaintiff-Appellee., David N. Parmenter, Parmenter & Associates, Blackfoot, ID, for Defendant-Appellant.
null
null
null
null
null
null
null
Submitted Oct. 11, 2012.*
null
null
0
Unpublished
null
<parties id="b303-6"> UNITED STATES of America, Plaintiff-Appellee, v. Jesus SANCHEZ-CARRANZA, Defendant-Appellant. </parties><br><docketnumber id="b303-9"> No. 11-30211. </docketnumber><br><court id="b303-10"> United States Court of Appeals, Ninth Circuit. </court><br><otherdate id="b303-11"> Submitted Oct. 11, 2012. <a class="footnote" href="#fn*" id="fn*_ref"> * </a> </otherdate><br><decisiondate id="b303-12"> Filed Oct. 15, 2012. </decisiondate><br><attorneys id="b303-13"> Anthony G. Hall, Esquire, Office of the U.S. Attorney, Boise, ID, Michael J. Fica, USPO — Office of the U.S. Attorney, Poca-tello, ID, for Plaintiff-Appellee. </attorneys><br><attorneys id="b303-14"> David N. Parmenter, Parmenter &amp; Associates, Blackfoot, ID, for Defendant-Appellant. </attorneys><br><judges id="b303-16"> Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges. </judges><div class="footnotes"><div class="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b303-19"> The panel unanimously concludes this case is suitable for decision without oral argument. <em> See </em> Fed. R.App. P. 34(a)(2). </p> </div></div>
[ "485 F. App'x 277" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca9.uscourts.gov/datastore/memoranda/2012/10/15/11-30211.pdf", "author_id": null, "opinion_text": " FILED\n NOT FOR PUBLICATION OCT 15 2012\n\n MOLLY C. DWYER, CLERK\n UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS\n\n\n\n\n FOR THE NINTH CIRCUIT\n\n\n\nUNITED STATES OF AMERICA, No. 11-30211\n\n Plaintiff - Appellee, D.C. No. 4:10-cr-00131-BLW-14\n\n v.\n MEMORANDUM *\nJESUS SANCHEZ-CARRANZA,\n\n Defendant - Appellant.\n\n\n\n Appeal from the United States District Court\n for the District of Idaho\n B. Lynn Winmill, Chief District Judge, Presiding\n\n Submitted October 11, 2012 **\n Portland, Oregon\n\nBefore: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.\n\n\n\n\n Jesus Sanchez-Carranza appeals his jury conviction and sentence. Sanchez-\n\nCarranza challenges the jury verdict, asserting that the evidence was not sufficient\n\n\n *\n This disposition is not appropriate for publication and is not precedent\nexcept as provided by 9th Cir. R. 36-3.\n **\n The panel unanimously concludes this case is suitable for decision\nwithout oral argument. See Fed. R. App. P. 34(a)(2).\n\fto sustain a conviction for conspiracy to distribute methamphetamine beyond a\n\nreasonable doubt. He further objects to the district judge's failure to grant him a\n\nminimal participant downward adjustment under U.S.S.G. § 3B1.2. We have\n\njurisdiction under 28 U.S.C. § 1291, and we affirm the jury conviction and\n\nsentence.\n\n1. The district court did not err in denying the motion for judgment of acquittal,\n\nbecause the evidence was sufficient to sustain the conviction. There was ample\n\ncircumstantial and direct evidence showing that Sanchez-Carranza made an\n\nagreement with a co-conspirator to distribute methamphetamine. Specifically,\n\nSanchez-Carranza’s co-conspirator testified at trial, establishing that (1) he\n\ncontacted Sanchez-Carranza to get the methamphetamine to sell to Detective\n\nMarley; (2) he received the methamphetamine from Sanchez-Carranza; and (3) he\n\ngave Sanchez-Carranza some of the money after the purchase, to pay for the\n\nmethamphetamine. This same testimony also provides sufficient evidence that a\n\njury could conclude Sanchez-Carranza knowingly and intentionally participated in\n\nthe conspiracy. See United States v. Herrera-Gonzalez, 263 F.3d 1092, 1097 (9th\n\nCir. 2001) (“The evidence of [defendant’s] participation in the activities of the\n\nconspiracy with knowledge of its criminal activity and an intention to further that\n\nactivity takes this case out of the ‘mere presence’ line of authority.”). Proof of an\n\n\n 2\n\fovert act is not required to establish a conspiracy under 21 U.S.C. § 846. United\n\nStates v. Suarez, 682 F.3d 1214, 1219 (9th Cir. 2012).\n\n2. The district court did not clearly err in denying the minimal participant\n\ndownward adjustment. To the contrary, the record clearly indicated that Sanchez-\n\nCarranza supplied the methamphetamine. Sanchez-Carranza did not offer any\n\nevidence showing that he was substantially less culpable than his co-participant in\n\nthe offenses.\n\n AFFIRMED.\n\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 810308 } ]
Ninth Circuit
Court of Appeals for the Ninth Circuit
F
USA, Federal
439,318
Anderson, Boyle, Fay
1984-08-14
false
in-re-grand-jury-proceedings-the-bank-of-nova-scotia-united-states-of
null
In Re Grand Jury Proceedings the Bank of Nova Scotia. United States of America v. The Bank of Nova Scotia
In Re GRAND JURY PROCEEDINGS the BANK OF NOVA SCOTIA. UNITED STATES of America, Plaintiff-Appellee, v. the BANK OF NOVA SCOTIA, Defendant-Appellant
Griffin B. Bell, King & Spalding, Charles H. Kirbo, James A. Pardo, Jr., Atlanta, Ga., Danforth Newcomb, Shearman & Sterling, Henry Harfield, Roberta Bender, New York City, William E. Sadowski, Akerman, Senterfitt & Eidson, Miami, Fla., for defendant-appellant., Herschel E. Sparks, Jr., Sage, Gray, Todd & Sims, Miami, Fla., Robert W. Brundige, Jr., New York City, for amicus curiae, The Canadian Bankers Ass’n., Stanley Marcus, U.S. Atty., Thomas A. Blair, Linda Collins Hertz, Lawrence H. Sharf, Andrea M. Simonton, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee., Andreas F. Lowenfeld, New York City, for the Government of Canada., Parker D. Thomson, Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Cloyce L. Mangas, Jr., Miami, Fla., for amicus curiae, The Cayman Islands, United Kingdom and Northern Ireland.
null
null
null
null
null
null
null
null
null
null
19
Published
null
<parties id="b907-9"> In re GRAND JURY PROCEEDINGS the BANK OF NOVA SCOTIA. UNITED STATES of America, Plaintiff-Appellee, v. The BANK OF NOVA SCOTIA, Defendant-Appellant. </parties><br><docketnumber id="b907-13"> Nos. 83-5708, 84-5198. </docketnumber><br><court id="b907-14"> United States Court of Appeals, Eleventh Circuit. </court><br><decisiondate id="b907-15"> Aug. 14, 1984. </decisiondate><br><attorneys id="b909-19"> <span citation-index="1" class="star-pagination" label="819"> *819 </span> Griffin B. Bell, King &amp; Spalding, Charles H. Kirbo, James A. Pardo, Jr., Atlanta, Ga., Danforth Newcomb, Shearman &amp; Sterling, Henry Harfield, Roberta Bender, New York City, William E. Sadowski, Akerman, Senterfitt &amp; Eidson, Miami, Fla., for defendant-appellant. </attorneys><br><attorneys id="b909-20"> Herschel E. Sparks, Jr., Sage, Gray, Todd &amp; Sims, Miami, Fla., Robert W. Brundige, Jr., New York City, for amicus curiae, The Canadian Bankers Ass’n. </attorneys><br><attorneys id="b909-21"> Stanley Marcus, U.S. Atty., Thomas A. Blair, Linda Collins Hertz, Lawrence H. Sharf, Andrea M. Simonton, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. </attorneys><br><attorneys id="b909-22"> Andreas F. Lowenfeld, New York City, for the Government of Canada. </attorneys><br><attorneys id="b909-23"> Parker D. Thomson, Thomson, Zeder, Bohrer, Werth, Adorno &amp; Razook, Cloyce L. Mangas, Jr., Miami, Fla., for amicus curiae, The Cayman Islands, United Kingdom and Northern Ireland. </attorneys><br><judges id="b909-25"> Before FAY and ANDERSON, Circuit Judges, and BOYLE <a class="footnote" href="#fn*" id="fn*_ref"> * </a> , District Judge. </judges><div class="footnotes"><div class="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b909-16"> Honorable Edward J. Boyle, Sr., U.S. District Judge for the Eastern District of Louisiana, sitting by designation. </p> </div></div>
[ "740 F.2d 817" ]
[ { "author_str": "Fay", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/740/740.F2d.817.83-5708.84-5198.html", "author_id": null, "opinion_text": "740 F.2d 817\n 84-2 USTC P 9802\n In re GRAND JURY PROCEEDINGS the BANK OF NOVA SCOTIA.UNITED STATES of America, Plaintiff-Appellee,v.The BANK OF NOVA SCOTIA, Defendant-Appellant.\n Nos. 83-5708, 84-5198.\n United States Court of Appeals,Eleventh Circuit.\n Aug. 14, 1984.\n \n Griffin B. Bell, King &amp; Spalding, Charles H. Kirbo, James A. Pardo, Jr., Atlanta, Ga., Danforth Newcomb, Shearman &amp; Sterling, Henry Harfield, Roberta Bender, New York City, William E. Sadowski, Akerman, Senterfitt &amp; Eidson, Miami, Fla., for defendant-appellant.\n Herschel E. Sparks, Jr., Sage, Gray, Todd &amp; Sims, Miami, Fla., Robert W. Brundige, Jr., New York City, for amicus curiae, The Canadian Bankers Ass'n.\n Stanley Marcus, U.S. Atty., Thomas A. Blair, Linda Collins Hertz, Lawrence H. Sharf, Andrea M. Simonton, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.\n Andreas F. Lowenfeld, New York City, for the Government of Canada.\n Parker D. Thomson, Thomson, Zeder, Bohrer, Werth, Adorno &amp; Razook, Cloyce L. Mangas, Jr., Miami, Fla., for amicus curiae, The Cayman Islands, United Kingdom and Northern Ireland.\n Appeals from the United States District Court for the Southern District of Florida.\n Before FAY and ANDERSON, Circuit Judges, and BOYLE*, District Judge.\n FAY, Circuit Judge:\n \n \n 1\n This case is an appeal by the Bank of Nova Scotia, (\"The Bank\"), of an order of civil contempt and the imposition of a $1,825,000 fine entered by the United States District Court for the Southern District of Florida. On numerous occasions the district judge ordered the Bank to comply with a grand jury subpoena duces tecum. * The Bank continuously disregarded the court's orders. The district judge concluded that the Bank did not act in good faith and found it in contempt of court. He imposed a $25,000 per day fine for as long as the Bank did not comply with the subpoena. The Bank challenges the order on various diplomatic and legal grounds. After a careful review of the record we conclude that the district judge was extremely patient. He did not abuse his discretion in finding the Bank in contempt of court and imposing the fine.\n \n I. FACTS\n \n 2\n The Bank of Nova Scotia is a Canadian banking corporation, headquartered in Toronto, with over 1,200 branches, offices and agencies in forty-six countries. On March 4, 1983, the Bank's Miami office was served with a grand jury subpoena duces tecum issued by the United States District Court for the Southern District of Florida. The subpoena called for the production of financial documents pertaining to two individuals and three companies from the Bank's branches in the Bahamas, the Cayman Islands and Antigua.1 On March 22, 1983, the Bank's Miami office sent telexes to the Bahamian and Cayman branches informing them of the subpoena and asking them to search for the requested documents. The Bank produced no documents at its March appearance before the grand jury. On April 4, 1983, the Bank filed a motion to quash in the district court asserting that if it complied with the subpoena it would violate the secrecy laws of the Bahamas and the Cayman Islands.2 The court denied the motion and ordered the Bank to produce the documents by May 31, 1983.\n \n \n 3\n During the month of May the Bank made no effort to comply with the court's order by searching for the subpoenaed documents. Instead the Bank spent its time corresponding through counsel with the Assistant United States Attorney handling the grand jury proceedings. The Bank continuously requested the government to send letters rogatory and to show the materiality and necessity of the subpoenaed documents to the grand jury investigation. The government repeatedly stated that it was willing to provide any requested assistance, short of showing materiality and necessity or sending letters rogatory.\n \n \n 4\n The only other effort by the Bank during the month of May to comply with the district court's order was the filing of a petition before the Grand Court of the Cayman Islands for permission to disclose the documents sought in the subpoena. The Grand Court denied the petition on May 31, 1983, but granted the Bank leave to renew it at a later date. The Court further ordered the Bank not to produce the subpoenaed documents. The Bank never appealed this order to the Court of Appeals in Jamaica.\n \n \n 5\n On June 1, 1983, the Bank filed another motion for relief from the subpoena in the district court. The court denied the motion on October 10, 1983, and ordered the Bank to comply with the subpoena by October 17, 1983, or face a contempt hearing on October 21, 1983. The Bank's only effort to locate any documents either in the Bahamas or in the Caymans between the June first motion and scheduled October hearing was a search conducted in Nassau on October 14, 1983, which produced no documents. The only document produced by the Bank during this seven month period was a xerox copy of a draft3 drawn to Paula Brady by the branch in Nassau for $163,892.33. At the hearing the district court concluded the Bank had not made a good faith effort to comply with the subpoena and found it in contempt. The court imposed a fine of $25,000 per day, beginning on October 26, 1983, and continuing until the Bank complied with the subpoena or the grand jury expired. We stayed the fine from October 25, 1983 until November 14, 1983.\n \n \n 6\n On November 11, 1983, the Attorney General of the Bahamas issued an order allowing the Bank to produce the requested documents. He concluded that since the Bahamian branch did not have an account relationship with the subjects of the subpoena the dealings of the parties in the Bahamas were not protected by the Bahamian bank privacy statute. On November fourteenth, just prior to the lifting of the stay of the $25,000 per day fine imposed by the district court, the Bank delivered the following documents from its Bahamian branches:\n \n \n 7\n Copies of the following Certificates of Deposit:\n \n \n 8\n a) CD 6511601 issued on March 2, 1979, for $50,000 payable to Paula or Frank Brady.\n \n \n 9\n b) CD 6511799 issued on March 2, 1979, for $50,000 payable to Paula or Frank Brady.\n \n \n 10\n c) CD 6511800 issued on March 2, 1979, for $50,000 payable to Paula or Frank Brady.\n \n \n 11\n Draft requisition dated November 8, 1982, by Paula Brady drawn on Manufacturer's Hanover in New York for $163,892.33.\n \n \n 12\n Nassau branch copy of the draft requisition of November 8, 1982.\n \n \n 13\n Receipt dated November 8, 1982, signed by Paula Brady.\n \n \n 14\n After this disclosure the Assistant United States Attorney insisted that there were Bahamian documents still missing. The Bank reiterated that all of its branches in Nassau had been searched and there were no other documents in the Bahamas.\n \n \n 15\n On November 11, 1983, the Grand Court of the Cayman Islands reconsidered the issue of disclosure and again refused to permit the Bank to disclose the records. However, the Governor of the Islands, pursuant to Section 3(2)(b)(iv) of the confidentiality statute,4 authorized the disclosure of the subpoenaed documents on November 17, 1983. The Bank immediately produced all of the documents which had been located at the Cayman branch of the Bank. Once again the Assistant United States Attorney reiterated that a substantial number of documents still had not been produced from the Bahamian branches in spite of the ruling by the Attorney General of the Bahamas permitting disclosure.5\n \n \n 16\n In late November, 1983, Mr. Nicol, the assistant chief inspector for the Bank, was ordered to go to the Bahamas and \"insure that [an] effective search had been carried out of the Bank's records in the Bahamas.\" Mr. Nicol arrived in Nassau on November 24, 1983, and immediately discovered additional documents in two of the Bank's Bahamian branches.6 As a result of his search photocopies of the following items were turned over on December 5, 1983:\n \n \n 17\n Composite 1: CD 1093134 dated January 11, 1979, for $20,000.\n \n \n 18\n The register copy of this CD.\n \n \n 19\n The diary debit copy showing that it was paid on April 11, 1979.\n \n \n 20\n Composite 2: CD 1093357 dated April 11, 1979, for $20,542.46.\n \n \n 21\n The register copy of this CD.\n \n \n 22\n The auditor's copy of this CD.\n \n \n 23\n Composite 3: CD 1093181 dated January 31, 1979, for $50,000.\n \n \n 24\n The register copy of this CD.\n \n \n 25\n Composite 4: CD 1093300 dated March 20, 1979 for $200,000.\n \n \n 26\n The register copy of this CD.\n \n \n 27\n Composite 5: CD 1093329 dated March 28, 1979, for $150,000.\n \n \n 28\n The register copy of this CD.\n \n \n 29\n The auditor's copy of this CD.\n \n \n 30\n Composite 6: Draft sold to Paula Brady payable to Brady Farms for $100,000 on January 11, 1979.\n \n \n 31\n Requisition for the draft.\n \n \n 32\n Composite 7: Draft sold to Frank Brady payable to Brady Farms for $200,000 on February 23, 1979.\n \n \n 33\n Requisition for the draft.\n \n \n 34\n Composite 8: Draft sold to Frank Brady payable to Brady Farms for $40,000 on February 23, 1979.\n \n \n 35\n Requisition for the draft.\n \n \n 36\n Composite 9: Draft for $225,000 sold on March 19, 1979, payable to Brady Farms.\n \n \n 37\n Requisition for the draft.\n \n \n 38\n Composite 10: Draft sold to Frank Brady payable to Clay Island Farms for $250,000 sold on April 18, 1979.\n \n \n 39\n Requisition for the draft.\n \n \n 40\n Prior cancelled requisition for the draft.\n \n \n 41\n Composite 11: Draft sold to Frank Brady payable to Calleaders Orr and Company for $170,000 sold on April 18, 1979.\n \n \n 42\n Requisition for the draft.\n \n \n 43\n Prior cancelled requisition for the draft.\n \n \n 44\n The following other items were also produced on December 5, 1983:\n \n \n 45\n Operation of Foreign Currency Deposit Account dated January 11, 1979, signed by Paula and Frank Brady.\n \n \n 46\n Bank Form 702: Current Account document and operating record.\n \n \n 47\n Several checking account statements.\n \n \n 48\n Deposit slip dated March 20, 1979 and a credit memo with the same date.\n \n \n 49\n Deposit slip and credit memo dated April 12, 1979.\n \n \n 50\n Deposit slip and credit memo dated April 18, 1979.\n \n \n 51\n A credit to the bank commission account for $1,191.90 for a handling charge.\n \n \n 52\n Three checking account statement for West Indies Island Tourist Company, LTD.\n \n \n 53\n Checking account statement in the F.N. Bowe \"U.S. Dollar\" account.\n \n \n 54\n On December 9, 1983, the Assistant United States Attorney informed the Bank that he needed a Bank employee to appear before the grand jury on December 20, 1983, to authenticate all of the documents that had been produced. The government's attorney reminded the Bank that only copies of the documents had been produced and requested that the authentication witness bring the originals. The Bank decided that it would send Mr. Nicol to appear before the grand jury but did not notify him until December nineteenth. As a result of the Bank's delay, his appearance before the grand jury was rescheduled for January 24, 1984.\n \n \n 55\n We heard oral argument on the expedited appeal on December 12, 1983. Since much had transpired during the pendency of the appeal we remanded the case to the district court for further proceedings7 and retained jurisdiction. In re Grand Jury Proceedings, United States v. The Bank of Nova Scotia, 722 F.2d 657 (11th Cir.1983).\n \n \n 56\n In January, Mr. Nicol began preparing for his appearance before the grand jury. While reviewing the documents he realized that a number of vouchers were still missing. He once more contacted the Bahamian branches and requested that the boxes of records be searched. On January 23, 1983, the Bank found additional documents in the Bahamas. The following documents,8 along with the original of the draft produced on October 20, 1983, were delivered on January 25, 1984:\n \n \n 57\n Four vouchers of the CDs redeemed on April 18, 1979.\n \n \n 58\n Cancelled draft 184901 dated November 8, 1982, to Paula Brady for $163,892.33 drawn on the Bank in Nassau and deposited to the F.N. Bowe \"U.S. Dollars\" account in Nassau.\n \n Diary debits to GL at maturity for:\n CD 1093300 in the amount of $220,000\n CD 1093329 in the amount of $150,000\n CD 1093181 in the amount of $50,000\n CD 1093357 in the amount of $20,542.46\n \n 59\n The hearing on remand was held on February 14, 1984. Most of the evidence introduced by the Government at the hearing consisted of affidavits.9 They also submitted the transcript of Mr. Nicol's appearance before the grand jury. The documentary evidence presented by the government was letters from the Bank's counsel transmitting some of the subpoenaed documents. The government called only one witness, Norman Washington Hill, a member of the Bar in England, and an attorney in the Cayman Islands since 1970.10\n \n \n 60\n The Bank called three witnesses, Mr. Nicol, Mr. Richard John Marshall, an attorney at law in the Cayman Islands, and Mr. Scott McDonald, the vice-chairman of the Bank's Board of Directors. Its documentary evidence consisted of its petitions before the Grand Court of the Caymans, the letters to the branches requesting assistance and a chart comparing the documents produced on December 5, 1983, with those produced on January 25, 1984.\n \n \n 61\n We had ordered the parties to present evidence to the district court of the letter agreement between both countries first mentioned to us during oral argument in December. The Bank introduced these letters, known as the \"Gentlemen's Agreement\", which reflected the results of a meeting between the Cayman Islands and the United States held in Miami in September, 1982. After the meeting, Acting Governor of the Caymans, D.H. Foster, wrote a letter to Michael Carpenter, the Consul General of the United States in Jamaica, outlining the necessary steps to be followed by the United States when requesting information protected by the confidentiality laws of the Caymans. Requests for assistance would be\n \n \n 62\n (1) initiated through the office of International Affairs of the United States Department of Justice;\n \n \n 63\n (2) directed to the Cayman Islands Commissioner of Police and supported by documentary evidence and affidavits sufficient to establish that the requests were in connection with inquiries into an offense made criminal by both the laws of the United States and the Cayman Islands, with tax offenses specifically excluded;\n \n \n 64\n (3) received by the Police Commissioner who would first determine whether a prima facie case was evident and if so would be referred to a committee consisting of the Attorney General, the Financial Secretary, a senior member of the police force and an elected member of the Executive Council;\n \n \n 65\n (4) examined by that Committee and forwarded with a recommendation to the Governor in Council for presentation to the Council at its next weekly meeting;\n \n \n 66\n (5) reviewed by the Governor in Council, and if the recommendation of the Committee were approved, the Governor would authorize the confidential information or records to be obtained for the Governor in Council; and the information\n \n \n 67\n (6) forwarded through the Police Commissioner to the United States Office of International Affairs after perusal by the Governor in Council.\n \n \n 68\n Foster predicted the information would be produced within one month of the request.11 He concluded his letter by saying: \"I should be obliged for confirmation that this is your Government's understanding....\"\n \n \n 69\n The United States Government never confirmed the agreement. Instead, Deputy Assistant Attorney General, Roger M. Olsen, wrote a letter dated January 11, 1983, to its Excellency, G.P. Lloyd, C.M.G., Governor of the Cayman Islands stating:\n \n \n 70\n ... I do wish to reiterate that while we are willing to try out the proposed procedures, the United States retains the option of relying on other legal processes available to us in gathering evidence. Such processes include our seeking the issuance of orders from our own courts commanding the production of evidence from persons or institutions in our territory.\n \n \n 71\n ... [W]e do have several reservations about whether the proposed procedures satisfactorily address both our Governments' needs.\n \n \n 72\n In response to Mr. Olsen's letter, Governor Lloyd wrote a letter to Mr. Carpenter on March 15, 1983. The Governor stated that \"even though no confirmation had been received from your Government as to the agreed procedures, they would be implemented by us.\"\n \n \n 73\n The amici all filed extensive briefs with the district court. At the hearing they very briefly presented their views to the court on the diplomatic ramifications of the case. Amici offered no evidence whatsoever. On February 28, 1984, the district court issued its order, reaffirming its conclusion that the enforcement of the grand jury subpoena was proper and that the Bank had not acted in good faith. The court found the total fine due and owing the United States to be $1,825,000.00.\n \n \n 74\n The Bank challenges the district court's contempt order by claiming that it made a good faith effort to comply with the court's orders in its search for the requested documents. It also asserts that both the diplomatic agreements between these countries and the act of state doctrine require reversal of the court's contempt order and fine. We disagree.\n \n II. PRODUCTION OF DOCUMENTS\n A. Lack of Good Faith\n \n 75\n The Bank of Nova Scotia was served with a subpoena from the grand jury on March 4, 1983. The Bank produced no documents at its March appearance before the grand jury and instead moved to quash the subpoena. The district court gave the Bank two months to search for the documents and ordered production by May 31, 1983. Instead of trying to comply with the district court's order during this time the Bank spent most of its time corresponding through counsel with the Assistant United States Attorney handling the case. The Bank insisted that the government send letters rogatory and show the materiality and necessity of the requested documents to the investigation. Neither of these is a prerequisite to the enforcement of a grand jury subpoena in our legal system.\n \n \n 76\n Under our system of jurisprudence the grand jury's function in investigating possible criminal violations is vital. In re Grand Jury Proceedings, United States v. Bank of Nova Scotia, 691 F.2d 1384 (11th Cir.1982), cert. denied sub nom, Bank of Nova Scotia v. United States, --- U.S. ----, 103 S. Ct. 3086, 77 L. Ed. 2d 1348 (1983); In re Grand Jury Proceedings, United States v. Field, 532 F.2d 404 (5th Cir.1976), cert. denied, 429 U.S. 940, 97 S. Ct. 354, 50 L. Ed. 2d 309 (1976). The Supreme Court has stated that \"the grand jury's authority to subpoena witnesses is not only historic, id. [Blair v. United States, 250 U.S. 273] at 279-281 [39 S. Ct. 468 at 470-471, 63 L. Ed. 979 (1919) ], but essential to its task.\" Branzburg v. Hayes, 408 U.S. 665, 688, 92 S. Ct. 2646, 2660, 33 L. Ed. 2d 626, 643 (1972). Since the ability to obtain evidence is crucial to all criminal justice proceedings, courts have repeatedly allowed the grand jury wide discretion in seeking evidence. See, United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973).\n \n \n 77\n It would be extremely unwise for us to unduly restrict the broad investigatory powers of the grand jury by first requiring that the government show necessity or issue letters rogatory. Letters rogatory are not equivalent to a grand jury subpoena. See, United States v. Vetco, Inc., 644 F.2d 1324 (9th Cir.1981). We have clearly stated that the government is not required to show the relevancy of the requested documents to a grand jury investigation,12 In re Grand Jury Proceedings, United States v. Bank of Nova Scotia, 691 F.2d at 1387; In re Grand Jury Proceedings, United States v. Guerrero, 567 F.2d 281 (5th Cir.1978); In re Grand Jury Proceedings, United States v. McLean, 565 F.2d 318 (5th Cir.1977),13 and we have repeatedly declined requests to overturn this rule. In re Grand Jury Proceedings, United States v. Nigel Bowe, 694 F.2d 1256, 1258 (11th Cir.1982); In re Slaughter, 694 F.2d 1258, 1260 (11th Cir.1982). As noted by the Supreme Court:\n \n \n 78\n Any holding that would saddle a grand jury with mini-trials and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws.\n \n \n 79\n United States v. Dionisio, 410 U.S. at 17, 93 S.Ct. at 773.\n \n \n 80\n The district court correctly concluded that the Bank failed to exercise good faith in its efforts to comply with the subpoena. All the Bank tried to do in this case was to obtain from the government what it was clearly not entitled to receive; a showing of materiality and necessity and the issuance of letters rogatory. The district court specifically ruled that letters rogatory were not required yet the Bank continued to write to the prosecutor requesting him to send letters rogatory. Nothing was substantially done by the Bank until the $25,000 per day fine imposed by the district court started to accumulate.\n \n \n 81\n The documents actually produced at different times virtually speak for themselves in showing lack of good faith. On October 20, 1983, seven months after the grand jury subpoena had been served, the only document produced by the Bank was a xerox copy of a draft drawn to Paula Brady for $163,892.33. The Assistant United States Attorney advised Bank's counsel that there were many more documents in existence which were responsive to the subpoena. Nevertheless, the Bank blithely ignored these warnings and on November 14, 1983, tendered copies of the documents relating to that one transaction as the only records in the Bahamian branches called for by the subponea. The prosecutor once more warned the Bank that he considered the production inadequate. The Bank insisted that they had diligently searched all ten branches in the Bahamas and had produced all documents. On November 17, 1983, the Bank turned over all of its records from the Cayman Islands. The IRS agent working on the case once more warned Bank's counsel that there were many more documents sought by the subpoena which the Bank had not produced.\n \n \n 82\n Having chosen to ignore all warnings until the fine had started to accumulate, the Bank belatedly became concerned and ordered Mr. Nicol, in late November, 1983, to go to the Bahamas and insure that an effective search had been carried out. Nicol's search began in obvious places which had been previously ignored or overlooked. As a result of his efforts numerous additional documents were discovered at two of the Bank's Bahamian branches. Nine months after the original service of the subpoena, on December 5, 1983, the Bank produced photocopies of voluminous records from 1979. While examining the original documents from the December fifth turnover Mr. Nicol discovered that there were other documents which obviously still were missing. He requested another search of the box of records and obtained the missing documents. These documents were produced on January 25, 1984.\n \n \n 83\n The flurry of activity undertaken by the Bank to discover documents after the trial court entered its order of contempt cannot save the Bank from the consequences of its previous extensive pattern of delay. See, e.g., United States v. Work Wear Corp., 602 F.2d 110 (6th Cir.1979). It is clear that the Bank had ample time to search its records and fully comply with the grand jury subpoena at least between April 27, 1983, when the trial court first ordered compliance, and November 14, 1983, when the fines began accumulating. The fact that the Bank at first may have believed erroneously that Bahamian law precluded disclosure, does not excuse the Bank's failure to perform a diligent search upon receipt of the trial court's order of enforcement. If the Bank had done so, it would have been able to avoid the fine with respect to the Bahamian documents by producing them all, rather than just a small fraction of them, on November 14, 1983.\n \n B. Balancing Competing Interests\n \n 84\n The Bank also asserts that compliance with the United States grand jury subpoena would require it to violate the Cayman Islands secrecy laws.14 It therefore contends that it would be appropriate for the United States to moderate the exercise of its judicial enforcement powers in this case since the conflicting laws impose inconsistent obligations on the Bank. The district court, balancing the several factors enumerated in Section 40 of the Restatement (Second) of Foreign Relations Law of the United States (1965), properly concluded that enforcement of the subpoena was proper.\n \n Section 40 provides:\n \n 85\n Limitations on Exercise of Enforcement Jurisdiction\n \n \n 86\n Where two states have jurisdiction to prescribe and enforce rules of law and the rules they may prescribe require inconsistent conduct upon the part of a person, each state is required by international law to consider, in good faith, moderating the exercise of its enforcement jurisdiction, in the light of such factors as:\n \n \n 87\n (a) vital national interests of each of the states,\n \n \n 88\n (b) the extent and the nature of the hardship that inconsistent enforcement actions would impose upon the person,\n \n \n 89\n (c) the extent to which the required conduct is to take place in the territory of the other state,\n \n \n 90\n (d) the nationality of the person, and\n \n \n 91\n (e) the extent to which enforcement by action of either state can reasonably be expected to achieve compliance with the rule prescribed by that state.\n \n \n 92\n Restatement (Second) of Foreign Relations Law of the United States (1965).\n \n \n 93\n The first Restatement factor is the relative interest of the states involved. In this case, the United States seeks to obtain information concerning the money transactions of individuals who are the target of a narcotics investigation. Stemming the narcotics trade has long been a concern of paramount importance to our nation. Congress has steadily enlarged the means available for the detection, prosecution and punishment of those who violate the narcotics laws of this country. Gore v. United States, 357 U.S. 386, 390, 78 S. Ct. 1280, 1283, 2 L. Ed. 2d 1405 (1958). Illegal narcotics trade generates enormous amounts of cash. Tracing the flow of these dollars is indispensable to this nation's efforts to stop the narcotics trade. Congress, as well as the Executive Branch, has long been \"concerned about [the] serious and widespread use of foreign financial institutions, located in jurisdictions with strict laws of secrecy as to bank activity, for the purpose of violating or evading domestic criminal, tax and regulatory enactments.\" California Bankers Ass'n v. Shultz, 416 U.S. 21, 27, 94 S. Ct. 1494, 1501, 39 L. Ed. 2d 812 (1974). See also, H.R.Rep. No. 91-975, 91 Cong.2d Sess. 12 (1970), U.S.Code Cong. &amp; Admin.News 1970, 4394, 4397.\n \n \n 94\n The Cayman Islands, on the other hand, sees preservation of bank secrecy as vital to the expansion of the Island's principal industry-banking and off-shore finance. Yet the law does not operate as a blanket guarantee of privacy and has many exceptions.15 As the Court of Appeal in Jamaica has stated:\n \n \n 95\n It would therefore appear that the policy of the legislature is that the Confidentiality Laws of the Cayman Islands should not be used as a blanket device to encourage or foster criminal activities.... [T]here is nothing in the statute to suggest that it is the public policy of the Cayman Islands to permit a person to launder the proceeds of crime in the Cayman Islands, secure from detection and punishment.\n \n \n 96\n In re Confidential Relationships (Preservation) Law, United States v. Carver, (Jamaica Ct.App.1982) (Joint Brief of the United Kingdom and the Cayman Islands, Appendix L.) Furthermore, even if the Cayman Islands had an absolute right to privacy, this right could not fully apply to American citizens. The interest of American citizens in the privacy of their bank records is substantially reduced when balanced against the interests of their own government engaged in a criminal investigation since they are required to report those transactions to the United States pursuant to 31 U.S.C. Sec. 1121 and 31 C.F.R. Sec. 103.24 (1979).16 United States v. Payner, 447 U.S. 727, 732 and n. 4, 100 S. Ct. 2439, 2444 and n. 4, 65 L. Ed. 2d 468 (1980).\n \n \n 97\n We agree with the district court that the Bank suffered no hardship as a result of inconsistent enforcement actions. The Bank and the amici argue that it is unfair to require the Bank to be put in the position of having to choose between the conflicting commands of foreign sovereigns. Yet such occasions will arise and a bank indeed will have to choose. As we stated in In re Grand Jury Proceedings United States v. Field, 532 F.2d 404, 410 (5th Cir.), cert. denied, 429 U.S. 940, 97 S. Ct. 354, 50 L. Ed. 2d 309 (1976):\n \n \n 98\n In a world where commercial transactions are international in scope, conflicts are inevitable. Courts and legislatures should take every reasonable precaution to avoid placing individuals in the situation [the Bank] finds [it]self. Yet, this court simply cannot acquiesce in the proposition that United States criminal investigations must be thwarted whenever there is conflict with the interest of other states.\n \n \n 99\n Consideration of the other factors set forth by the Restatement does not alter our conclusion that the district court properly enforced the subpoena and imposed contempt sanctions. The disclosure to the grand jury would take place in the United States. The foreign origin of the subpoenaed documents should not be a decisive factor.17 The nationality of the Bank is Canadian, but its presence is pervasive in the United States.18 The Bank has voluntarily elected to do business in numerous foreign host countries and has accepted the incidental risk of occasional inconsistent governmental actions. It cannot expect to avail itself of the benefits of doing business here without accepting the concomitant obligations. As the Second Circuit noted years ago, \"If the Bank cannot, as it were, serve two masters and comply with the lawful requirements both of the United States and Panama, perhaps it should surrender to one sovereign or the other the privileges received therefrom.\" First National City Bank of New York v. Internal Revenue Service, 271 F.2d 616, 620 (2d Cir.1959), cert. denied, 361 U.S. 948, 80 S. Ct. 402, 4 L. Ed. 2d 381 (1960).\n \n \n 100\n Enforcement of the subpoena is consistent with the grand jury's goals of investigating criminal matters. It is also entirely consistent with the Cayman policy against the use of its business secrecy law \"to encourage or foster criminal activities.\" In the Matter of Proceedings Pending in the United States District Court for the District of Columbia between United States of America and Ray R. Carver, et al., (Ct. of Appeal, Jamaica 1982) quoted in Joint Brief of the United Kingdom and the Cayman Islands at 26-27. We conclude that enforcement of the subpoena and the sanctions imposed in this case are proper under the balancing approach of Section 40.\n \n III. THE GENTLEMEN'S AGREEMENT\n \n 101\n Amici, United Kingdom and the Cayman Islands, contend that the subject subpoena should not be enforced because the United States is bound to follow the procedure developed as a result of a September 27, 1982, meeting and exchange of letters between the United States and Cayman Islands. The amici assert that this new procedure, called the gentlemen's agreement, was a precondition to enforcement of the grand jury subpoena. After considering the briefs and arguments of the parties and amici,19 and reviewing the uncontroverted affidavits of the United States the district court found:\n \n \n 102\n [The letters exchanged between the United States and Cayman Islands] do not constitute any formal inter-governmental agreement. While the Cayman government may have manifested an intent to be bound to the agreed procedures, the United States government clearly did not. Additionally, the Cayman Governor was not under the impression that the United States intended to be bound by the procedures.\n \n \n 103\n Supp. Record at 346.\n \n \n 104\n Based upon this finding, the district court concluded:\n \n \n 105\n The letter agreements did not result in and in and of themselves do not constitute a contract by which the United States is bound. Even if the \"gentlemen's agreement\" was binding, it would not have required any course of action different from that which the government took in this case. By its terms, it did not require the government to resort first to the outlined procedures or to forfeit the prerogatives of the United States Attorney with respect to grand jury investigations. The \"gentlemen's agreement\" was not a means by which this Court could have properly required the government to reveal to the Bank or the Cayman government the materiality and necessity of the subpoenaed documents to the grand jury investigation. In other words, the government did not bargain away its rights under McLean [565 F.2d 318] and its progeny to maintain the secrecy of the investigation.\n \n \n 106\n The district court's interpretation of the gentlemen's agreement procedure is the only rational interpretation supported by the record. The testimony and the letters reveal only preliminary negotiations with a hope of reaching a definite agreement in the future.20 The March 15, 1983, letter from Governor Lloyd to Consul General Michael Carpenter makes this clear. Governor Lloyd clearly indicated the decision of the Cayman Islands to implement the working procedures even though no confirmation had been received from the United States as to the procedures. It is clear from the evidence presented to the district court that this exchange of letters was not a binding, enforceable agreement but rather an experimental and tentative alternative for the production of documents.\n \n \n 107\n Further, the gentlemen's agreement did not purport to limit the existing law enforcement investigatory methods used by the United States--such as the grand jury subpoena. On the contrary, each of the United States witnesses refuted this assertion. Government's Exhibits 2, 3 and 4. The January 11, 1983, letter from Deputy Assistant Attorney General Roger Olsen to Governor Lloyd, specifically rejected any such interpretation by stating:\n \n \n 108\n However, I do wish to reiterate that while we are willing to try out the proposed procedures, the United States retains the option of relying on other legal processes available to us in gathering evidence. Such processes include our seeking the issuance of orders from our own courts commanding the production of evidence from persons or institutions in our territory.\n \n \n 109\n Government Exhibit 3A.\n \n \n 110\n Finally, the mechanism set forth in the gentlemen's agreement is not even applicable where the United States is concurrently investigating tax and narcotics laws violations. Governor Lloyd informed Michael Carpenter that \"it is only fair to say that I do foresee difficulty [in] the type of case which is clearly criminal but also has tax prosecution possibilities.\" Joint Brief of the United Kingdom and the Cayman Islands, Appendix Y-2). Since the grand jury investigation in this case concerned both tax and narcotics violations it is clear that the gentlemen's agreement procedure was not applicable.21\n \n \n 111\n The gentlemen's agreement procedure is a far cry from constituting a substantially equivalent alternative to a grand jury subpoena. The agreement represents nothing more than an understanding that informal requests for assistance would now be channeled between the Justice Department's Office of International Affairs and Cayman's Commissioner of Police. As Deputy Assistant Attorney General Olsen asserted, it would \"violate good sense and reason\" to forego the use of the subpoena power in these circumstances. Government Exhibit 3 at 5.\n \n IV. THE SINGLE CONVENTION ON NARCOTIC DRUGS\n \n 112\n Amici, United Kingdom and the Cayman Islands, also contend that the subject subpoena is void because it was issued contrary to the provisions of the Single Convention on Narcotic Drugs, 1961. The district court concluded that:\n \n \n 113\n The Single Convention on Narcotic Drugs, 1961. 18 U.S.T. 1409, TIAS 6298, New York, March 30, 1961, ratified by the United States 1967, does not control the conduct of the parties to this case. It cannot be interpreted to require that the government make a showing of materiality and necessity to a party or issue letters rogatory when seeking to obtain documents located in another party's jurisdiction. It does not restrict the grand jury subpoena power. It does not contain exclusive means for the exchange of information between parties. Cf., Vetco, supra, 691 F.2d at 1285-1286.\n \n \n 114\n Supplemental Record at 350-351.\n \n \n 115\n We agree.\n \n \n 116\n The primary purpose of the Convention was to simplify and rationalize the numerous existing treaties on the international control of production and commerce in narcotic substances. Its ultimate goal was to eliminate illicit drug trafficking. See generally, Cohrrsen and Hoover, The International Control of Dangerous Drugs, 9 J.Int.L. and Econ. 81, 83-85 (1974); Lande, The Single Convention on Narcotic Drugs, 1961, 16 Int'l.Org. 776 (1962).\n \n \n 117\n To effectuate this goal, Article 35, entitled \"Action against the illicit traffic\", provides for cooperation by the signatory countries, \"having due regard to their constitutional, legal and administrative systems.\" Under Article 36, the parties agree to provide criminal penalties for any drug transactions which are contrary to the provisions of the convention. The obligation of each party to provide these penalties is subject to the constitutional limitations and the legal system and domestic law of each signatory country. Thus, it is clear that the drafters of the Convention wanted to ensure that it was sufficiently flexible so as to be generally acceptable.\n \n \n 118\n In In re Baird, 668 F.2d 432 (8th Cir.), cert. denied, 456 U.S. 982, 102 S. Ct. 2255, 72 L. Ed. 2d 860 (1982), the court recognized that the Single Convention did not impair the investigatory powers granted to the grand jury under United States law. Similarly, in In Re Nigro, 555 F. Supp. 65 (D.Colo.), aff'd, 705 F.2d 1224 (10th Cir.1982), cert. denied sub nom, 461 U.S. 927, 103 S. Ct. 2087, 77 L. Ed. 2d 298 (1983), the court protected the integrity of the grand jury process by emphasizing that the Single Convention would not require the abrogation of the grand jury secrecy rule, and held that an immunized witness could be compelled to testify despite an alleged fear of foreign prosecution. These cases clearly establish that a country's obligations to cooperate under the Single Convention are governed by its own domestic law. The only logical interpretation of the Single Convention vis-a-vis existing law enforcement techniques is that the Single Convention was intended to encourage the expansion of available mechanisms for obtaining relevant information. It cannot be interpreted in a way that hinders, rather than aids, the enforcement of drug trafficking laws. United States v. Liles, 670 F.2d 989 (11th Cir.), cert. denied, 456 U.S. 1008, 102 S. Ct. 2300, 73 L. Ed. 2d 1303 (1982); United States v. Richardson, 580 F.2d 946 (9th Cir.1978), cert. denied, 439 U.S. 1068, 99 S. Ct. 835, 59 L. Ed. 2d 33 (1979).\n \n \n 119\n The existence of the Single Convention on Narcotic Drugs does not require any greater deference to foreign law than that already recognized in the balancing test set forth in the Restatement. The requirement of international cooperation in Article 35 permits the United States to cooperate with \"due regard\" to its own legal system. The well-established legal system of the United States permits enforcement of grand jury subpoenas under the circumstances of this case. The Single Convention neither requires the United States to forego this method of obtaining records nor does it require the Cayman Islands to defer to it. The existence of the Single Convention does not restrict the grand jury's power in this case.\n \n V. THE ACT OF STATE DOCTRINE\n \n 120\n Only the United Kingdom asserts that the act of state doctrine should be applied here to thwart the efforts by the Executive Branch to obtain records in furtherance of a grand jury investigation into conduct crossing our nation's boundaries. The doctrine is completely inapplicable to this case. The act of state doctrine is primarily designed to avoid impingement by the judiciary upon the conduct of foreign policy by the Executive Branch. It is aimed at preventing judicial interference with the conduct of foreign relations by questioning the validity of the acts of foreign sovereigns in the context of a civil suit.22 The doctrine is not required by considerations of sovereignty, international law or the Constitution. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 421-27, 84 S. Ct. 923, 936-40, 11 L. Ed. 2d 804 (1964); Timberlane Lumber Co. v. Bank of America, 549 F.2d 597, 605 (9th Cir.1976). Instead the doctrine \"derives from the judiciary's concern for its possible interference with the conduct of foreign affairs by the political branches of the government.\" Timberlane Lumber Co. v. Bank of America, 549 F.2d at 605.\n \n \n 121\n The Restatement's definition of the rule renders it completely inapplicable in the investigatory or criminal context:Except as otherwise provided ... a court in the United States, having jurisdiction ... to determine a claim asserted against a person in the United States or with respect to a thing located there, or other interest localized there, will refrain from examining the validity of an act of a foreign state by which that state has exercised its jurisdiction to give effect to its public interests.\n \n \n 122\n Restatement (Second) Foreign Relations Law of the United States Sec. 41 (1965).\n \n \n 123\n It is also inapplicable in this case because the Cayman Grand Court purported to control conduct in the United States by blocking compliance with the grand jury subpoena, whereas the classic formulation of the doctrine is set forth in Underhill v. Hernandez, 168 U.S. 250, 252, 18 S. Ct. 83, 84, 42 L. Ed. 456 (1897) as follows:\n \n \n 124\n Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.\n \n \n 125\n The district court correctly concluded that the doctrine had no application to this case.23 The district court pointed out that it never \"passed upon the validity of any act of a foreign state before issuing the April 27 order denying the Bank's motion to quash the subpoena and directing the Bank to comply with the subpoena.\" Supp.R. at 351. The court also never conducted an inquiry into the validity of a public act of a foreign sovereign. United States law does not require blindly giving effect to the act of a foreign sovereign without \"having due regard ... to the rights of its own citizens, or of other persons who are under the protection of its laws.\" Hilton v. Guyot, 159 U.S. 113, 164, 16 S. Ct. 139, 143, 40 L. Ed. 95 (1895).\n \n \n 126\n We have previously recognized that international friction is provoked by enforcement of subpoenas such as the one in this case. In re Grand Jury Proceedings United States v. Bank of Nova Scotia, 691 F.2d at 1388. But under our tripartite form of government federal courts remain open to the legislative and executive branches for assistance if matters such as this prove to have international repercussions. See e.g., United States v. First National City Bank, 379 U.S. 378, 384-85, 85 S. Ct. 528, 531-32, 13 L. Ed. 2d 365 (1965). The grand jury is a centuries-old, common law institution which is vital to our system of government. It has both the right and the duty to inquire into the existence of possible criminal conduct. Branzburg v. Hayes, 408 U.S. 665, 688, 92 S. Ct. 2646, 2660, 33 L. Ed. 2d 626 (1972). Indispensable to the exercise of its power is the authority to require the production of evidence. United States v. Mandujano, 425 U.S. 564, 571, 96 S. Ct. 1768, 1774, 48 L. Ed. 2d 212 (1976). The district judge in this case was extremely patient. He gave the Bank ample chances to comply with the subpoena. But the Bank was just sloppy in its search. The remedy for violation of the district court's order is civil contempt. The imposition of a coercive fine is not improper, In re Grand Jury Impaneled January 21, 1975, 529 F.2d 543, 550-51 (3d Cir.), cert. denied sub nom, Freedman v. United States, 425 U.S. 992, 96 S. Ct. 2203, 48 L. Ed. 2d 816 (1976), and will be reversed only for an abuse of discretion. See, e.g., United States v. Flores, 628 F.2d 521, 527 (9th Cir.1980). The order of contempt and the fine in this case did not constitute an abuse of the district court's discretion.\n \n \n 127\n AFFIRMED.\n \n \n \n *\n Honorable Edward J. Boyle, Sr., U.S. District Judge for the Eastern District of Louisiana, sitting by designation\n \n \n 1\n The Bank investigated and found none of the requested documents at its Antigua branch. Therefore, that part of the subpoena is not at issue. The individuals and corporations named in the subpoena are Frank Brady, Paula Brady, Frank J. Brady Enterprises, Inc., Brady Farms, Inc., and Clay Island Farms, Inc\n \n \n 2\n The relevant section of the confidentiality law of the Cayman Islands reads as follows:\n 3A. (1) Whenever a person intends or is required to give in evidence in, or in connection with, any proceeding being tried, inquired into or determined by any court, tribunal or other authority (whether within or without the Islands) any confidential information within the meaning of this Law, he shall before so doing apply for directions and any adjournment necessary for that purpose may be granted.\n (2) Application for directions under subsection (1) shall be made to, and be heard and determined by, a Judge of the Grand Court sitting alone and in camera. At least seven days' notice of any such application shall be given to the Attorney General an, if the Judge so orders, to any person in the Islands who is a party to the proceedings in question. The Attorney General may appear as amicus curiae at the hearing of any such application and any party on whom notice has been served as aforesaid shall be entitled to be heard thereon, either personally or by counsel.\n Section 3A(1)-(2) of the Confidential Relationships (Preservation) Law of 1976 (as amended in 1979).\n The Bank concedes, on page eight of its supplemental brief, that the Attorney General of the Bahamas authorized the Bank to release the documents prior to the time the contempt sanction became effective. Thus, the Bahamian documents \"are not at issue in this appeal.\"\n \n \n 3\n A draft in the Bahamian islands is the same thing as an American cashier's check\n \n \n 4\n Section 3(2)(b)(iv) of the Confidential Relationship (Preservation) Law of 1976 (as amended in 1979) states:\n (2) This law has no application to the seeking, divulging, or obtaining, of confidential information--...\n (b) by or to ...\n (iv) the Financial Secretary, the Inspector or, in relation to particular information specified by the Governor, such other person as the Governor may authorise; ....\n \n \n 5\n Of the $1,825,000 fine imposed by the district court, only $100,000 is attributable to the failure to produce records from both the Bahamas and the Cayman Islands. The remainder of the fine is imposed solely because of the failure to produce the Bahamian records until January 25, 1984. There was absolutely no question whatsoever concerning the Bahamian records after November 11, 1983\n \n \n 6\n Mr. Nicol began his search by opening a sealed list of dormant accounts which revealed one of the target names on the subpoena. He noticed that all of the 1979 records appeared to be missing. He then ordered a physical search of the archives room which revealed a box of vouchers with no label. This box held most of the items requested in the subpoena\n \n \n 7\n We remanded the case for several reasons. During oral argument the bank asserted that it had fully complied with the subpoena and the government disagreed. We found out there existed a Single Convention on Narcotic Drugs (1961) signed by both the United States and the Cayman Islands and a letter agreement between the officials of both countries that allegedly controlled this situation. Neither of these agreements was brought to the attention of the trial judge. In addition, the views of various amici, i.e., the government of Canada, the Canadian Bankers' Association, the United Kingdom of Great Britain and Northern Ireland and the Cayman Islands, were never presented to the district court at the first proceedings\n \n \n 8\n The Bank asserts that these documents were identical in content to the documents produced by the Bank on December 5, 1983. The vouchers submitted to the government on January 24, 1984, were one copy of a four-part form, but once the form is separated each part acquires different markings on its independent routing through the Bank\n \n \n 9\n Although the Government had all of the witnesses whose affidavits had been submitted to the court present in the courtroom, the Bank chose not to cross-examine any of them\n \n \n 10\n Mr. Hill has been employed by the United States Department of Justice since 1982 to represent its interests in the Cayman Islands\n \n \n 11\n John Harris stated in his affidavit that \"no bank records have ever been received in any case by the United States in the fourteen months that the informal agreement has been under experiment....\"\n \n \n 12\n We are all aware that the Third Circuit in its holdings in In re Grand Jury Proceedings (Schofield I), 486 F.2d 85 (1973) and In re Grand Jury Proceedings (Schofield II), 507 F.2d 963, cert. denied, 421 U.S. 1015, 95 S. Ct. 2424, 44 L. Ed. 2d 685 (1975) has imposed a relevancy requirement but we have already stated that we refuse to impose such a restriction. In re Grand Jury Proceedings, United States v. Bank of Nova Scotia, 691 F.2d 1384, 1387 (11th Cir.1982). We join the other circuits that have declined to adopt such a rule. See, e.g., In re Pantojas, 628 F.2d 701 (1st Cir.1980); In re Liberatore, 574 F.2d 78 (2d Cir.1978)\n \n \n 13\n Decisions of the former Fifth Circuit rendered prior to October 1, 1981, are binding upon this court unless and until they are overruled by the Eleventh Circuit sitting en banc. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc )\n \n \n 14\n Most of the arguments raised by the Bank and amici challenge the contempt order against the Bank for failure to produce records from the Cayman Islands yet almost the entire fine imposed is attributable solely to the Bank's delayed production of records from the Bahamas. The Bank does not contest the validity of the underlying contempt order as it applies to the refusal to produce the documents from its Bahamian branches so we will discuss only the Cayman records\n \n \n 15\n Disclosure may be made whenever authorized by the Grand Court, or \"in the normal course of business,\" or with the \"express or implied consent\" of the \"relevant principal,\" or \"by or to\" a constable investigating offenses in the jurisdiction, or \"by or to\" a constable investigating certain offenses alleged to have been committed abroad, or \"by or to\" the Financial Secretary, the Inspector or anyone else authorized by the Governor, or \"by or to\" a professional person where \"necessary for the protection of himself or any other person against crime,\" or in accordance with the provisions of \"any other law.\" Confidential Relationships (Preservation) Law Sec. 3. The statute does not restrict the power of the Grand Court in ruling upon applications. In a criminal case for which an application for disclosure is made, the judge is merely instructed to \"have regard to\" the \"interests of justice.\" Id. Sec. 3A(6)(c)\n \n \n 16\n The interest of the Cayman Islands in protecting the privacy of bank customers is also diminished here since the investigating body is a federal grand jury which is required by law to maintain the secrecy of its proceedings. See, United States v. Vetco, 644 F.2d 1324, 1331 (9th Cir.1981); Fed.R.Crim.P. 6(e)\n \n \n 17\n The Government of Canada vigorously asserted that the situs of the records is of utmost significance and that, absent extraordinary circumstances, the law of the jurisdiction must prevail. This position is advanced only in a tentative draft of the revised Restatement and does not reflect the current law of the United States. See, e.g., In re Grand Jury Proceedings, The Bank of Nova Scotia, 691 F.2d 1384 (11th Cir.1982); United States v. Field, 532 F.2d 404 (5th Cir.), cert. denied, 429 U.S. 940, 97 S. Ct. 354, 50 L. Ed. 2d 309 (1976). The position advanced by the tentative draft has been explicitly rejected by the State Department. See, e.g., Compelling Discovery and Evidence in International Litigation, Address of Honorable Davis R. Robinson, The Legal Advisor, U.S. Department of State before the Association of the Bar of the City of New York (February 14, 1984)\n \n \n 18\n The Bank of Nova Scotia has branches in Boston and Portland, agencies in Atlanta, Miami, New York and San Francisco, representative offices in Chicago, Cleveland, Houston, and Los Angeles, and a wholly-owned subsidiary, Bank of Nova Scotia Trust Company of New York\n \n \n 19\n Although the amici were very verbose in their briefs we were surprised that they presented no documents or evidence to the district court when dealing with the serious legal questions involved in this case\n \n \n 20\n Deputy Assistant Attorney General Roger Olsen's affidavit avers that it \"would have been in direct contradiction to the authority granted to me and our delegation\" to enter into a binding agreement on September 27, 1982. Government Exhibit 3 at 5. Amici did not controvert this assertion\n \n \n 21\n It is also important to note that the informal procedure has not resulted in the expeditious production of bank records. John Harris stated that as of February 14, 1984, \"no bank records have ever been received in any case by the United States in the fourteen months that the informal agreement has been under experiment, even though access to such evidence was one of the central aims of our discussions.\" Government Exhibit 4 at 7-8\n \n \n 22\n As Commentary j to Restatement Sec. 41 notes, the act of state doctrine is a variant of \"conflict of law rules\" for \"settlement of civil litigation of a private nature.\"\n \n \n 23\n The court also pointed out that even if we were to assume that the act of state doctrine applied, this case would fall within the Banco Nacional De Cuba v. Sabbatino, 307 F.2d 845 (2nd Cir.1962) exception. The court stated:\n [T]here was no danger in this case that enforcement of the subpoena would inpinge upon fundamental matters committed by the Constitution to other branches of government. The branch of government to which these matters of foreign policy are committed is the same branch seeking (and obtaining) enforcement of the subpoena. The court in Sabbatino observed that '... when the executive branch of our Government announces that it does not oppose inquiry by American courts into the legality of foreign acts, an exception to the judicial abnegation required by the act of state doctrine has arisen....' Id. at 857-858.\n \n \n ", "ocr": false, "opinion_id": 439318 } ]
Eleventh Circuit
Court of Appeals for the Eleventh Circuit
F
USA, Federal
601,380
null
1993-02-03
false
guy-hansell-starnes-v-dareld-l-kerby-warden
null
Guy Hansell Starnes v. Dareld L. Kerby, Warden
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "986 F.2d 1429" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/986/986.F2d.1429.92-2032.html", "author_id": null, "opinion_text": "986 F.2d 1429\n NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.\n Guy Hansell STARNES, Petitioner-Appellant,v.Dareld L. KERBY, Warden, Respondent-Appellee.\n No. 92-2032.\n United States Court of Appeals, Tenth Circuit.\n Feb. 3, 1993.\n \n 1\n Before BALDOCK and SETH, Circuit Judges, and BABCOCK,* District Judge.\n \n \n 2\n ORDER AND JUDGMENT**\n \n \n 3\n LEWIS T. BABCOCK, District Judge.\n \n \n 4\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.\n \n \n 5\n Petitioner-appellant Guy Hansell Starnes appeals the district court's denial of his petition for writ of habeas corpus, filed under 28 U.S.C. &#167; 2254. Starnes raises a double jeopardy challenge to his convictions for aggravated burglary, kidnapping, and criminal sexual penetration. Starnes also argues that he was denied the right to a fair and impartial jury or the right to effective assistance of counsel when a juror with personal knowledge of Starnes' case was allowed to remain on the jury. We exercise jurisdiction under 28 U.S.C. &#167; 2253 and affirm.\n \n \n 6\n Starnes was convicted of three counts of criminal sexual penetration in the second degree (CSP II), one count of kidnapping, one count of aggravated burglary, and one count of misdemeanor criminal sexual contact as a lesser included offense. The three counts of CSP II were merged for sentencing purposes. He received a sentence of 364 days on the criminal sexual contact offense, 20 years for the combined CSP II counts, 20 years for the kidnapping count, and 20 years for the aggravated burglary count, with all sentences ordered to run consecutively. On direct appeal, the New Mexico Court of Appeals affirmed his convictions. State v. Starnes, No. 9918 (N.M.Ct.App. May 21, 1987). The New Mexico Supreme Court denied his petition for certiorari.\n \n \n 7\n Starnes then filed a pro se habeas corpus petition in the state district court. He argued that (1) he was denied an impartial jury, (2) his punishment violated double jeopardy, (3) the jury was given an erroneous instruction, (4) he was denied his right to compulsory process, (5) his parole sentence violated due process, and (6) he was denied effective assistance of counsel. The court agreed that his parole sentence was inappropriate under New Mexico law, but denied all of the other claims on the grounds that he failed to raise these claims on direct appeal. Starnes v. Kerby, No. CR-86-58-S (N.M. Apr. 30, 1990). Starnes filed a petition for writ of certiorari to the New Mexico Supreme Court, claiming that the five issues he raised for the first time in his habeas petition could not have been raised on direct appeal because he had ineffective assistance of counsel in docketing the appeal. The New Mexico Supreme Court denied certiorari.\n \n \n 8\n Next, Starnes filed a petition for writ of habeas corpus in federal district court, raising the same five issues which were denied in his state habeas petition. In his brief, however, Starnes did not pursue his claims challenging the jury instructions or his right to compulsory process. As to the remaining claims, the magistrate recommended that (1) procedural default did not bar federal habeas review of the double jeopardy claim because the state court's decision to dismiss the claim was not based on an adequate state ground, but the double jeopardy claim lacked merit; (2) procedural default did not preclude federal habeas review of the ineffective assistance of counsel claim because the state's application of its procedural bar did not rest on an adequate state ground, but the claim failed on the merits; and (3) the federal district court was precluded from reviewing the merits of the impartial jury claim because the state court's finding of procedural bar constituted an adequate and independent state ground, and, alternatively, the claim lacked merit. The district court adopted the magistrate's recommendations.\n \n I. Double Jeopardy Claims\n \n 9\n Starnes was charged with three counts of CSP II, aggravated burglary, and kidnapping, as well as several other offenses, for breaking into a woman's home on January 24, 1986, in Carlsbad, New Mexico, and forcing her to, among other things, perform three separate acts of fellatio. Starnes does not dispute the following findings of the magistrate regarding the facts relevant to the double jeopardy claim:\n \n \n 10\n The victim testified that a man wearing a ski mask jumped her in her bedroom. The victim stated that the man pushed her face down onto the bed and threatened to gag her. The man blindfolded the victim and tied her hands and feet....\n \n \n 11\n ....\n \n \n 12\n The victim then testified that the man untied her feet and led her to another bedroom where he tied her to the clothes rod in the closet. The man had the victim put on a bikini and pair of high-heeled shoes. The victim stated that the man wanted her to dance, but she had no radio or stereo. The man led the victim back to her bedroom where he pushed the victim into certain positions on the bed. The man then lit a marijuana cigarette and told the victim to puff on it.\n \n \n 13\n The victim further testified that the man asked her how she wanted to have intercourse. The victim told the man she was using a tampon. The man touched the victim's vagina to check for the tampon. The victim stated that the man then went to a chair where he forced her to perform fellatio. The man later moved to the bed where he again had the victim perform fellatio and then moved back to the chair where he once more forced the victim to perform fellatio.\n \n \n 14\n The man next told the victim to lie face down on the bed where he tied her feet and hands again. The man told the victim not to get up and call the police. The victim testified that she heard the man leave the apartment. Some time later, the victim got up and went to her boss' house, where they called the police.\n \n \n 15\n R. doc. 31 at 2-3.\n \n \n 16\n Starnes claims that his convictions and consecutive sentences for (1) CSP II and kidnapping, and (2) CSP II and aggravated burglary violate the double jeopardy clause of the Fifth Amendment. The Fifth Amendment protects against imposing multiple punishment for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717 (1969). \"With respect to cumulative sentences imposed in a single trial, the Double Jeopardy Clause does no more than prevent the sentencing court from prescribing greater punishment than the legislature intended.\" Missouri v. Hunter, 459 U.S. 359, 366 (1983). \"A federal court in a habeas corpus proceeding should defer to a state court's interpretation of a state statute as to whether a number of acts constitute only one criminal offense or separate offenses for double jeopardy purposes.\" Brecheisen v. Mondragon, 833 F.2d 238, 240 (10th Cir.1987), cert. denied, 485 U.S. 1011 (1988).\n \n \n 17\n The New Mexico Supreme Court recently formulated a two-part test for determining legislative intent to punish in the multiple punishment context. Swafford v. State, 810 P.2d 1223, 1233 (N.M.1991). The first part of the test \"asks the question that Supreme Court precedents assume to be true: whether the conduct underlying the offenses is unitary, i.e., whether the same conduct violates both statutes.\" Id. If the conduct is not unitary, then the double jeopardy clause does not prohibit multiple punishment in the same trial, id., and there is no need to proceed to the second part of the test, id. at 1234. The second part of the test examines the statutes at issue and \"asks whether the legislature intended multiple punishments for unitary conduct.\" Id. at 1233-34. \"Only if the first part of the test is answered in the affirmative, and the second in the negative, will the double jeopardy clause prohibit multiple punishment in the same trial.\" Id. at 1233.\n \n A. Kidnapping and CSP II\n \n 18\n We agree with the magistrate's conclusion that the conduct underlying the CSP II and kidnapping convictions was not unitary within the meaning of Swafford. Swafford directs that whether conduct is unitary \"depends to a large degree on the elements of the charged offenses and the facts presented at trial.\" Id. CSP II is defined as unlawful criminal sexual penetration committed \"in the commission of any other felony.\" N.M.Stat.Ann. &#167; 30-9-11(B)(4) (Michie 1991 Cumm.Supp.). Kidnapping is defined as \"the unlawful taking, restraining or confining of a person, by force ... with intent that the victim ... be held to service against [her] will.\" Id. &#167; 30-4-1(A)(3) (1984 Repl.Pamp.). Starnes argues the conduct is unitary because the conduct underlying the kidnapping and CSP II charges arose out of an assault against one victim, at one time and place. However, Swafford instructs that time and space considerations are not necessarily determinative of whether conduct underlying multiple charges is distinguishable; in some cases \"resort must be had to the quality and nature of the acts or to the objects and results involved.\" 810 P.2d at 1234.\n \n \n 19\n In State v. McGuire, 795 P.2d 996, 1000 (N.M.1990), the New Mexico Supreme Court recognized that every act of criminal sexual penetration could also constitute an act of kidnapping, given that the kidnapping offense does not require asportation of the victim. To resolve the double jeopardy challenge, the McGuire court examined whether identical facts necessarily supported both charges. Id. The defendant in McGuire forced his victim from the front seat of her car to the back, and, while his brother drove the car, the defendant bound the victim's hands and feet, gagged her mouth, and then raped her. Id. at 999. The defendant was convicted of kidnapping and CSP II. The McGuire court concluded that the CSP II offense was not subsumed within the kidnapping offense because the jury could have reasonably found an independent factual basis for the two offenses from the evidence at trial. Id. at 1001; see also Swafford, 810 P.2d at 1234 (recognizing that even though McGuire did not analyze double jeopardy challenge under rubric of unitary conduct, it appropriately recognized the fundamental concern of the unitary conduct question \"that similar statutory provisions sharing certain elements may support separate convictions and punishments where examination of the facts presented at trial establish that the jury reasonably could have inferred independent factual bases for the charged offenses\").\n \n \n 20\n We conclude that in this case substantial evidence was presented from which the jury could have concluded that independent factual bases support the CSP II and kidnapping charges. The victim was physically restrained and led from room to room. She was tied to a clothes rod in the closet and forced to wear a bikini and a pair of high-heeled shoes. Then, back in her bedroom, she was pushed into certain positions on her bed and told to puff a marijuana cigarette. All of these acts that she was forced to perform were of a different nature than the acts which support the CSP II convictions. Additionally, they all occurred before she was forced to perform fellatio. The conduct underlying the kidnapping charge was sufficiently distinct from the conduct underlying the CSP II charges to support separate convictions. See Herron v. State, 805 P.2d 624, 628 (N.M.1991) (movement or relocation of victim tends to establish that acts involved in continuous criminal episode are separate and distinct). Therefore, Starnes has failed to show that the conduct underlying the two offenses is unitary.\n \n B. Aggravated Burglary and CSP II\n \n 21\n Aggravated burglary is an unauthorized entry with the intent to commit any felony or theft and commission of a battery upon any person in the place entered. N.M.Stat.Ann. &#167; 30-16-4(c) (1984 Repl.Pamp.). Starnes argues that his convictions for CSP II and aggravated burglary constitute multiple punishment for the same offense because the jury might have relied on the evidence of sexual penetration underlying the CSP II charges as the battery required to aggravate the burglary. Starnes' double jeopardy challenge fails, however, unless the conduct underlying the CSP II and aggravated burglary convictions is unitary. Swafford, 810 P.2d at 1233.\n \n \n 22\n The jury was instructed at the beginning of the trial that the battery for the burglary charge was a battery other than the acts of criminal sexual penetration. Additionally, the record contains sufficient evidence, discrete from the acts of sexual penetration, from which the jury could infer that the battery of the burglary charge was distinct from the conduct underlying the CSP II charges. We conclude that Starnes has failed to show that the conduct underlying the two offenses is unitary.\n \n \n 23\n II. Ineffective Assistance and Impartial Juror Claims\n \n \n 24\n Starnes argues that his trial counsel provided ineffective assistance by failing to object when a juror was allowed to remain on the jury despite his personal knowledge of the case. During Starnes' trial, one of the jurors, Mr. Roach, sent a note to the judge stating that he knew of the case and he was a good friend of the victim's boss, Mr. Rink. Mr. Roach recalled that he once heard Mr. Rink comment that he had been up all night with an employee, but Mr. Roach did not know whether that comment was related to this case. Mr. Roach also recalled that Starnes' case had previously ended in a mistrial. The judge questioned Mr. Roach and found that he could continue to sit on the jury because he could hear the case fairly and impartially. Starnes' trial attorney stated that he had no objection to Mr. Roach remaining on the jury. The judge allowed Mr. Roach to remain on the jury, over the prosecutor's objection.\n \n \n 25\n For Starnes to prevail on his ineffective assistance claim he must show that his counsel's performance was deficient. Strickland v. Washington, 466 U.S. 668, 687 (1984). \"This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment.\" Id. Starnes must also show that his counsel's deficient performance prejudiced the defense. Id. \"This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.\" Id.\n \n \n 26\n We need not consider whether the performance of Starnes' trial attorney was deficient because we agree with the conclusion below that Starnes has failed to demonstrate that he was prejudiced from his attorney's failure to object to Mr. Roach's presence on the jury. See Church v. Sullivan, 942 F.2d 1501, 1513 (10th Cir.1991) (noting that, under Strickland, 466 U.S. at 697, \" 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.' \").\n \n \n 27\n Attempting to show prejudice, Starnes argues that Mr. Roach had so much outside knowledge about the case that he should have been disqualified from sitting on the jury. The presence of a biased person on the jury constitutes prejudice under Strickland. See Johnson v. Armontrout, 961 F.2d 748, 755-56 (8th Cir.1992). Additionally, Starnes' Sixth Amendment right to an impartial jury is violated if any member of the jury was biased. Id. The presumption that a juror was impartial can be raised by demonstrating that the juror actually possessed an opinion or impression. Murphy v. Florida, 421 U.S. 794, 800 (1975) (citation omitted).\n \n \n 28\n In this case, the state trial court made a factual finding that Mr. Roach was impartial. The state court's finding of a juror's impartiality is presumed to be correct. Baca v. Sullivan, 821 F.2d 1480, 1483 (10th Cir.1987). Starnes argues that the record does not support such a finding because Mr. Roach admitted personal knowledge of the previous mistrial, as well as personal knowledge that corroborated the victim's testimony that she sought the help of her employer after the assault. Mr. Roach explained to the state trial court judge, however, that he did not know whether the employee with whom his friend, Mr. Rink, had stayed up was the victim, or even whether the incident of which Mr. Rink spoke involved a criminal matter. Mr. Roach told the judge that he had no knowledge of the facts of the case, other than what he revealed in his note and what he learned at trial. After careful review of the arguments and the record, we find that Starnes has failed to demonstrate that Mr. Roach was biased, or make any other showing of prejudice. We agree with the determination below that Starnes' ineffective assistance of counsel claim lacks merit.\n \n \n 29\n Starnes also claims that his Sixth Amendment right to a fair and impartial jury was violated by Mr. Roach's presence on the jury. In light of our conclusion that Starnes has failed to show Mr. Roach was biased, we agree with the district court that this claim lacks merit.\n \n \n 30\n We grant Starnes a certificate of probable cause. The judgment of the United States District Court for the District of New Mexico is AFFIRMED.\n \n \n \n *\n Honorable Lewis T. Babcock, District Judge, United States District Court for the District of Colorado, sitting by designation\n \n \n **\n This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3\n \n \n ", "ocr": false, "opinion_id": 601380 } ]
Tenth Circuit
Court of Appeals for the Tenth Circuit
F
USA, Federal
2,693,336
Froelich
2013-05-17
false
state-v-price
Price
State v. Price
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "2013 Ohio 2020" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/2/2013/2013-ohio-2020.pdf", "author_id": 8090, "opinion_text": "[Cite as State v. Price, 2013-Ohio-2020.]\n\n\n\n\n IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO\n\nSTATE OF OHIO :\n\n Plaintiff-Appellee : C.A. CASE NO. 25362\n\nv. : T.C. NO. 11CR3627\n\nRICHARD M. PRICE, II : (Criminal appeal from\n Common Pleas Court)\n Defendant-Appellant :\n\n :\n\n ..........\n\n OPINION\n\n Rendered on the 17th day of May , 2013.\n\n ..........\n\nJOSEPH R. HABBYSHAW, Atty. Reg. No. 0089530, Assistant Prosecuting Attorney, 301\nW. Third Street, 5th Floor, Dayton, Ohio 45422\n Attorney for Plaintiff-Appellee\n\nNICHOLAS G. GOUNARIS, Atty. Reg. No. 0064527, 130 W. Second Street, Suite 1818,\nDayton, Ohio 45402\n Attorney for Defendant-Appellant\n\n ..........\n\nFROELICH, J.\n\n {¶ 1} After the trial court overruled his motion to suppress evidence,\n\f 2\n\nRichard M. Price, II was found guilty on his no contest plea in the Montgomery County\n\nCourt of Common Pleas of one count of possession of heroin, a felony of the fifth degree.\n\nPrice was sentenced to community control sanctions for a period not to exceed five years.\n\nPrice appeals from his conviction, claiming that the trial court erred in denying his motion to\n\nsuppress. For the following reasons, the judgment of the trial court will be affirmed.\n\n {¶ 2} On November 22, 2011, at approximately 10:30 p.m., Dayton Police\n\nOfficer Justin Saunders stopped a white pick-up truck on southbound Finley Avenue for\n\nfailing to stop at a stop sign. As Saunders approached the car, he saw the driver “reach\n\nwith his left hand into his right waist band.” This behavior caused Saunders to be\n\nconcerned that the driver, Price, had a weapon. Saunders testified that this particular area\n\nwas known for “high prostitution” and “a lot of gun calls” and weapons complaints, and that\n\nhe had made three arrests for carrying concealed weapons in this area. Saunders thought\n\nthat Price’s movements indicated an attempt to conceal or retrieve a weapon.\n\n {¶ 3} Saunders ordered Price to put his hands on the steering wheel and then to\n\nstep out of the vehicle. Price complied, but he again began to reach toward his right\n\nwaistband. Saunders immediately grabbed Price’s arm and felt his waistband. Saunders\n\nfelt a plastic baggie containing gelcaps, which was “three quarters exposed” and “almost to\n\nthe point where it was ready to fall on the ground.” Based on his experience, Saunders\n\nbelieved that the gelcaps contained heroin. He removed the baggie and arrested Price.\n\n {¶ 4} Prior to towing Price’s truck, officers conducted an inventory search,\n\nduring which they found a green plastic bag containing a spoon with residue and syringes.\n\n {¶ 5} Price was charged with possession of heroin and drug paraphernalia. He\n\f 3\n\nfiled a motion to suppress the evidence found on his person and in his truck and any\n\nsubsequent statements he had made to the police. After conducting a hearing on the motion,\n\nthe trial court overruled it. Price subsequently pled no contest to possession of heroin, in\n\nexchange for which the drug paraphernalia charge was dismissed. The trial court found\n\nPrice guilty of possession of heroin and sentenced him to community control.\n\n {¶ 6} Price raises one assignment of error on appeal, arguing that the trial court\n\nerred in overruling his motion to suppress. He contends that the search conducted outside\n\nof his truck was not a proper pat down search in that it was not limited to a pat down of his\n\nouter clothing. He also claims that Officer Saunders did not testify that it was immediately\n\napparent to him that the item seized from Price’s waistband was contraband.\n\n {¶ 7} The Fourth Amendment to the United States Constitution protects\n\nindividuals from unreasonable searches and seizures. Terry v. Ohio, 392 U.S. 1, 88 S.Ct.\n\n1868, 20 L.Ed.2d 889 (1968). A traffic stop by a law enforcement officer must comply with\n\nthe Fourth Amendment’s reasonableness requirement. Whren v. United States, 517 U.S.\n\n806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).\n\n {¶ 8} A police officer may stop and detain a motorist when he observes a\n\nviolation of the law, including any traffic offense, and no independent reasonable and\n\narticulable suspicion of other criminal activity is required. State v. Brown, 2d Dist.\n\nMontgomery No. 20336, 2004-Ohio-4058, ¶ 11. A police officer may also require that the\n\noccupant(s) of a motor vehicle exit the vehicle pursuant to a stop for a traffic violation\n\nbecause of the legitimate safety concerns of both the officer and the occupant(s).\n\nPennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 54 L.Ed.2d 331(1977); State v.\n\f 4\n\nEvans, 67 Ohio St.3d 405, 407-08, 618 N.E.2d 162 (1993).\n\n {¶ 9} “Authority to conduct a patdown search for weapons does not automatically\n\nflow from a lawful stop[.]” State v. Stewart, 2d Dist. Montgomery No. 19961,\n\n2004-Ohio-1319, ¶ 16. Once a lawful stop has been made, the police may conduct a limited\n\nprotective search for concealed weapons if the officer reasonably believes that the suspect\n\nmay be armed or a danger to the officer or to others. State v. Evans, 67 Ohio St.3d 405,\n\n408, 618 N.E.2d 162 (1993); State v. Molette, 2d Dist. Montgomery No. 19694,\n\n2003-Ohio-5965, ¶ 13. “The purpose of this limited search is not to discover evidence of\n\ncrime, but to allow the officer to pursue his investigation without fear of violence * * *.”\n\nEvans at 408, quoting Adams v. Williams, 407 U.S. 143, 146, 92 S.Ct. 1921, 32 L.Ed.2d 612\n\n(1972).\n\n {¶ 10} Under the plain feel doctrine, an officer conducting a patdown for weapons\n\nmay lawfully seize an object if he has probable cause to believe that the item is contraband.\n\nMinnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); State\n\nv. Phillips, 155 Ohio App.3d 149, 2003-Ohio-5742, 799 N.E.2d 653, ¶ 41-42 (2d Dist.).\n\nThe “incriminating character” of the object must be “immediately apparent,” meaning that\n\nthe police have probable cause to associate an object with criminal activity. Dickerson, 508\n\nU.S. at 375; State v. Buckner, 2d Dist. Montgomery No. 21892, 2007-Ohio-4392.\n\n {¶ 11} In reviewing the trial court’s ruling on a motion to suppress, we accept the\n\ntrial court’s findings of fact if they are supported by competent, credible evidence. State v.\n\nOlden, 2d Dist. Montgomery No. 23137, 2010-Ohio-215, ¶ 21. But we “‘independently\n\ndetermine, as a matter of law, whether the facts meet the appropriate legal standard.’” Id.,\n\f 5\n\nat ¶ 21, quoting State v. Morgan, 2d Dist. Montgomery No. 18985, 2002-Ohio-268.\n\n {¶ 12} Officer Saunders testified that, as he approached Price’s vehicle, he saw\n\nPrice “reach with his left hand into his right waist band.” This observation caused Saunders\n\nto fear that Price had a weapon. Saunders ordered Price to put both hands on the steering\n\nwheel and then to step out of the truck. According to Saunders, when Price exited the truck,\n\n“[h]e immediately turned his back to me. He stiffened his upper body up, took his right\n\nhand and reached once again toward the right side of his waistband.” Saunders grabbed\n\nPrice’s hand and felt his waistband in order to determine “whatever object he was reaching\n\nfor[,] in fear that it was a weapon.” Saunders further testified that he felt a plastic baggie\n\nand capsules “[d]irectly inside” Price’s waistband. Saunders later clarified that he “felt at\n\n[Price’s] waistband” or placed his hand on the waistband.\n\n {¶ 13} Price argues that Saunders “actually went inside Mr. Price’s waistband,”\n\nrather than simply patting the waistband. But the record does not compel this conclusion.\n\nSaunders testified that he felt gelcaps inside Price’s waistband and that most of the plastic\n\nbaggie was outside the waistband; he did not testify that his hand was inside the waistband.\n\nThe trial court could have reasonably concluded that Saunders had not reached inside the\n\nwaistband in determining what Price was carrying in his waistband.\n\n {¶ 14} Price also argues that, by Saunders’s own admission, Saunders improperly\n\n“skipped” the permitted pat down search for weapons and “immediately reached inside Mr.\n\nPrice’s waistband.” However, Saunders’s testimony established that, immediately after\n\nPrice was ordered out of the vehicle, Price reached toward his waistband in a way that\n\nconcerned Saunders. Saunders did not “get a chance” to conduct a thorough frisk for\n\f 6\n\nweapons before Price’s movements caused concern, for the second time, about whether a\n\nweapon might be concealed in his waistband. Under these circumstances, Saunders’s focus\n\non Price’s waistband did not indicate a failure to conduct a valid pat down; it simply\n\nindicated the area of greatest concern. Saunders did not act improperly in focusing his\n\ninitial pat down on the waistband.\n\n {¶ 15} Finally, Price argues that Saunders did not testify that it was “immediately\n\napparent” to him that the baggie contained contraband. Although Saunders did not use\n\nthese words, his testimony left no doubt that, upon feeling the gelcaps in the plastic baggie\n\nat Price’s waist, he immediately concluded that the items were contraband. Saunders was\n\nan experienced police officer, and he testified that, in his mind, gelcaps are “strictly\n\nassociated with heroin,” that he had never seen gelcaps containing an over-the-counter\n\nmedication, and that he believed “100 percent” that the gelcaps contained an illegal\n\nsubstance. Saunders’s testimony made clear that the probable illegal nature of the gelcaps\n\nwas immediately apparent to him.\n\n {¶ 16} In its decision overruling the motion to suppress, the trial court concluded\n\nthat Saunders had a reasonable, articulable suspicion that Price was armed and that this\n\nsuspicion justified the pat down. It also concluded that Saunders’s knowledge of the\n\nwidespread use of baggies and gelcaps to transport heroin and his belief that he felt gelcaps\n\nin the baggie at Price’s waistband provided probable cause and justified the seizure of the\n\nbaggie. The trial court’s factual conclusions are supported by competent, credible evidence,\n\nand it did not err in refusing to suppress the State’s evidence.\n\n {¶ 17} The assignment of error is overruled.\n\f 7\n\n {¶ 18} The judgment of the trial court will be affirmed.\n\n ..........\n\nDONOVAN, J. and HALL, J., concur.\n\nCopies mailed to\n\nJoseph R. Habbyshaw\nNicholas G. Gounaris\nHon. Michael W. Krumholtz\n\f", "ocr": false, "opinion_id": 2693336 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
2,169,810
Barnes
2008-11-14
false
houzanme-v-houzanme
Houzanme
Houzanme v. Houzanme
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "896 N.E.2d 935" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7255, "opinion_text": "\n896 N.E.2d 935 (2008)\nHOUZANME\nv.\nHOUZANME.\nNo. 49A02-0802-CV-131.\nCourt of Appeals of Indiana.\nNovember 14, 2008.\nBARNES, J.\nDisposition of case by Unpublished Memorandum Decision. Remanded.\nFRIEDLANDER, J. Concurs.\nDARDEN, J. Concurs.\n", "ocr": false, "opinion_id": 2169810 } ]
Indiana Court of Appeals
Indiana Court of Appeals
SA
Indiana, IN
2,704,464
Kilbane
2011-07-21
false
state-v-bronston
Bronston
State v. Bronston
null
null
null
null
null
null
null
null
null
null
null
null
2
Published
null
null
[ "2011 Ohio 3576" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2011/2011-ohio-3576.pdf", "author_id": 8109, "opinion_text": "[Cite as State v. Bronston, 2011-Ohio-3576.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n JOURNAL ENTRY AND OPINION\n No. 94936\n\n\n\n STATE OF OHIO\n PLAINTIFF-APPELLEE\n\n vs.\n\n\n EDWARD BRONSTON\n DEFENDANT-APPELLANT\n\n\n\n\n JUDGMENT:\n REVERSED AND REMANDED\n\n\n Criminal Appeal from the\n Cuyahoga County Court of Common Pleas\n Case No. CR-451589\n\n BEFORE: Kilbane, A.J., Blackmon, J., and Cooney, J.\n\n RELEASED AND JOURNALIZED: July 21, 2011\n\fATTORNEY FOR APPELLANT\n\nAaron T. Baker\nP.O. Box 824\nWilloughby, Ohio 44096\n\nATTORNEYS FOR APPELLEE\n\nWilliam D. Mason\nCuyahoga County Prosecutor\nDaniel T. Van\nAssistant County Prosecutor\nThe Justice Center - 8th Floor\n1200 Ontario Street\nCleveland, Ohio 44113\n\n\n\n\nMARY EILEEN KILBANE, A.J.:\n\n {¶ 1} Defendant-appellant, Edward Bronston, appeals from the order of the trial\n\ncourt that reclassified him as a Tier III offender under the Adam Walsh Act (“AWA”).\n\nFor the reasons set forth below, we reverse the Tier III offender classification under\n\nAWA and remand for the trial court to reinstate Bronston’s prior classification as an\n\naggravated sexually oriented offender under Megan’s Law.\n\n {¶ 2} On May 4, 2004, defendant was indicted on two counts of rape of a child\n\nunder 13 years old, with furthermore clauses alleging that he compelled her to submit by\n\nforce or threat of force; one count of kidnapping with a sexual motivation specification;\n\nand one count of gross sexual imposition upon a second child under 13 years old.\n\nDefendant subsequently entered into a plea agreement with the State. Under the terms\n\nof the plea agreement, the State deleted the furthermore clauses from the rape charges,\n\fand on July 22, 2004, defendant pled guilty to the amended counts of rape and kidnapping\n\nwith the sexual motivation specification. The charge of gross sexual imposition was\n\nnolled. At this time, the trial court advised defendant that he would be subject to five\n\nyears of postrelease control and stated:\n\n “Any violation of the terms and conditions of that postrelease control will\n lead to further incarceration, which will be part of the penalty in this case.\n\n So upon release, five years of postrelease control. Should you violate the\n terms, that can lead to an additional six and a half years, be assessed as part\n of the penalty in this case. All right?”\n\n {¶ 3} On the same date, defendant was sentenced to a total of 13 years of\n\nimprisonment. With regard to postrelease control, the court ordered that “[p]ostrelease\n\ncontrol is part of this prison sentence for the maximum period allowed for the above\n\nfelony(s) under R.C. 2967.28.”\n\n {¶ 4} The trial court additionally found defendant to be an aggravated sexually\n\noriented offender under Megan’s Law, former R.C. Chapter 2950. Under this\n\ndesignation, defendant was required to verify his address with the county sheriff every 90\n\ndays for life and was also subject to community notification requirements.\n\n {¶ 5} On November 8, 2005, defendant filed a notice of appeal and a motion for a\n\ndelayed appeal. This court denied the motion on November 29, 2005. In December of\n\n2005, defendant filed a notice of appeal to the Supreme Court, which was denied in April\n\n2006. Defendant filed a motion for a delayed appeal again on June 18, 2007, which was\n\ndenied the following day. On August 1, 2007, defendant filed an appeal to the Ohio\n\nSupreme Court, which was denied on December 12, 2007.\n\f {¶ 6} On August 14, 2009, defendant moved to withdraw his guilty plea, asserting\n\nthat the “judgment sentencing entry does not clearly state that Mr. Bronston’s term of\n\npostrelease control is mandatory and incorrectly identifies the period of control as\n\n‘maximum period allowed for the above [felonies] under R.C. 2967.28.’”\n\n {¶ 7} On September 3, 2009, while the motion to withdraw the guilty plea was\n\npending, defendant filed a petition to vacate his conviction pursuant to R.C. 2953.21,\n\narguing that his trial counsel was ineffective and that the sentence imposed by the trial\n\ncourt was unlawful.\n\n {¶ 8} The trial court denied both the motion to withdraw the plea and the petition\n\nto vacate on October 28, 2009. Defendant filed a notice of appeal and motion for leave\n\nto file a delayed appeal, which this court denied on January 22, 2010.\n\n {¶ 9} On February 25, 2010, defendant filed a motion for resentencing in which\n\nhe asserted that his sentence was void because the “journal entry of [the] sentence fails to\n\nspecifically state the required period of postrelease control.” On March 5, 2010, the\n\nState also filed a motion for resentencing, acknowledging that “the journal entry of\n\nsentencing does not provide adequate notice of postrelease control.”\n\n {¶ 10} On March 22, 2010, the trial court held a hearing in the matter. The court\n\nstated that the motions for resentencing were granted. The court then reimposed the\n\n13-year sentence that it had previously ordered and also stated:\n\n “Well, for starters, based on the plea that you entered into, the Court is\n going to find you to be a [Tier III] sex offender now [under the Adam\n Walsh Act, R.C. Chapter 2950], which requires lifetime verification of your\n residence and employment with in-person verification every 90 days.\n\f “* * *\n\n Now, upon release from prison, you will be subject to mandatory five years\n of postrelease control, and any violation of the terms and conditions of\n postrelease control could get you additional prison time under this case not\n to exceed half the amount of time that the Court has put in place.”\n\n {¶ 11} Defendant now appeals and assigns the following error for our review:\n\n “The trial court’s reclassification of the Appellant as a Tier III sex offender\n under the Adam Walsh Act was a violation of the separation of powers\n doctrine and is unconstitutional.”\n\n {¶ 12} Within this assignment of error, defendant asserts that under the law\n\nannounced in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, the\n\ntrial court erred in reclassifying him under Adam Walsh Act since his prior classification\n\nunder Megan’s Law was a final order. In opposition, the State asserts that Bodyke\n\ninvolves reclassifications conducted by the Attorney General and is therefore\n\ndistinguishable from this matter that involves a trial court’s de novo sentencing hearing to\n\nremedy defective imposition of postrelease control.\n\n {¶ 13} As an initial matter, we note that in State v. Fischer, 128 Ohio St.3d 92,\n\n2010-Ohio-6238, 942 N.E.2d 332, the Supreme Court held that when a defendant is\n\nconvicted of or pleads guilty to one or more offenses and postrelease control is not\n\nproperly included in his or her sentence, the sentence for that offense is void, but “only\n\nthe offending portion of the sentence is subject to review and correction.”\n\n {¶ 14} Further, in State v. Bell, Cuyahoga App. No. 95719, 2011-Ohio-1965, this\n\ncourt held that where resentencing is required because of an error in the imposition of\n\fpostrelease control, the trial court is not authorized to address a defendant’s\n\npreviously-imposed sex offender classification. Id., citing State v. Gibson, Champaign\n\nApp. No. 2009 CA 47, 2010-Ohio-3447; State v. Gimbrone, Montgomery App. No.\n\n23810, 2011-Ohio-632. See, also, State v. Williams, 177 Ohio App.3d 865,\n\n2008-Ohio-3586, 896 N.E.2d 725 (improper imposition of postrelease control does not\n\naffect the validity of defendant’s classification as a sexual predator).\n\n {¶ 15} In accordance with the foregoing, the assignment of error is well taken.\n\n {¶ 16} We therefore reverse the trial court’s determination that defendant is a Tier\n\nIII offender under the Adam Walsh Act, and we remand in order for the trial court to\n\nreinstate defendant’s prior classification as an aggravated sexually oriented offender\n\nunder Megan’s Law.\n\n It is ordered that appellant recover from appellee costs herein taxed.\n\n The court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate issue out of this court directing the common\n\npleas court to carry this judgment into execution.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of\n\nthe Rules of Appellate Procedure.\n\n\n\n\nMARY EILEEN KILBANE, ADMINISTRATIVE JUDGE\n\nPATRICIA A. BLACKMON, J., and\nCOLLEEN CONWAY COONEY, J., CONCUR\n\f\f", "ocr": false, "opinion_id": 2704464 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
245,156
Clark, Hincks, Per Curiam, Stewart
1958-05-22
false
samuel-roth-v-united-states
null
Samuel Roth v. United States
Samuel ROTH, Appellant, v. UNITED STATES of America, Appellee
Herbert Monte Levy, New York City, for appellant., Mark F. Hughes, Jr., Asst. U. S. Atty., S. D. New York, New York City (Paul W. Williams, U. S. Atty., Charles H. Miller, Asst. U. S. Atty., New York City, of counsel, on the brief), for appellee.
null
null
null
null
null
null
null
Argued April 30, 1958.
null
null
5
Published
null
<parties data-order="0" data-type="parties" id="b542-9"> Samuel ROTH, Appellant, v. UNITED STATES of America, Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b542-11"> No. 322, Docket 24977. </docketnumber><br><court data-order="2" data-type="court" id="b542-12"> United States Court of Appeals Second Circuit. </court><br><otherdate data-order="3" data-type="otherdate" id="b542-13"> Argued April 30, 1958. </otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b542-14"> Decided May 22, 1958. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b543-4"> <span citation-index="1" class="star-pagination" label="441"> *441 </span> Herbert Monte Levy, New York City, for appellant. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b543-5"> Mark F. Hughes, Jr., Asst. U. S. Atty., S. D. New York, New York City (Paul W. Williams, U. S. Atty., Charles H. Miller, Asst. U. S. Atty., New York City, of counsel, on the brief), for appellee. </attorneys><br><p data-order="7" data-type="judges" id="b543-6"> Before CLARK, Chief Judge, and HINCKS and STEWART, Circuit Judges. </p>
[ "255 F.2d 440" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/255/255.F2d.440.322.24977.html", "author_id": null, "opinion_text": "255 F.2d 440\n Samuel ROTH, Appellant,v.UNITED STATES of America, Appellee.\n No. 322, Docket 24977.\n United States Court of Appeals Second Circuit.\n Argued April 30, 1958.Decided May 22, 1958.\n \n Herbert Monte Levy, New York City, for appellant.\n Mark F. Hughes, Jr., Asst. U.S. Atty., S.D. New York, New York City (Paul W. Williams, U.S. Atty., Charles H. Miller, Asst. U.S. Atty., New York City, of counsel, on the brief), for appellee.\n Before CLARK, Chief Judge, and HINCKS and STEWART, Circuit Judges.\n PER CURIAM.\n \n \n 1\n The appellant's criminal conviction for sending obscene matter through the mails was affirmed by this court, 237 F.2d 796, and by the Supreme Court, 352 U.S. 964, 77 S. Ct. 361, 1 L. Ed. 2d 319. Thereafter he made a motion in the district court for reduction of his five-year sentence to the time already served. Rule 35, F.R.Crim.P. This appeal is from the denial of that motion.\n \n \n 2\n There is no question but that the sentence was within the allowable statutory limit. 18 U.S.C. 1461. It is the appellant's contention, however, that in imposing the sentence originally, and in refusing to reduce it, the district judge applied 'illegal and unconstitutional standards.' Specifically, it is asserted that the trial judge in determining the length of the sentence relied primarily upon the appellant's record of previous convictions for similar offenses, and that most, if not all, of these previous convictions would be invalid in the light of present standards. the record, however, shows that in addition to the appellant's prior criminal record, Judge Cashin had the benefit of a variety of other data, including a presentence investigation report, a 'brochure' submitted by the appellant, and information as to the appellant's health and domestic life.\n \n \n 3\n The rule is well settled that a United States Court of Appeals is without power to review or revise a sentence which is within permissible statutory limits. United States v. Rosenberg, 2 Cir., 195 F.2d 583, 603-609, certiorari denied 344 U.S. 838, 73 S. Ct. 20, 97 L. Ed. 687, rehearing denied 1952, 344 U.S. 889, 73 S. Ct. 134, 97 L. Ed. 687; United States v. Landi, 2 Cir., 1957, 240 F.2d 238; Jolly v. United States, 6 Cir., 229 F.2d 180, certiorari denied 1956, 351 U.S. 963, 76 S. Ct. 1024, 100 L. Ed. 1483. For the reasons stated this is not a case that demands inquiry as to what exceptions, if any, there may be to this rule. See Smith v. United States, 5 Cir., 1955, 223 F.2d 750, 754. Nor need we here inquire as to the extent of the Supreme Court's jurisdiction in this area in the exercise of its supervisory power over the administration of justice in the lower federal courts. Compare Yates v. United States, 78 S. Ct. 766, with Mr. Justice Frankfurter's memorandum in Rosenberg v. United States, 1952, 344 U.S. 889, 890, 73 S. Ct. 134, 97 L. Ed. 687.\n \n \n 4\n Affirmed.\n \n ", "ocr": false, "opinion_id": 245156 } ]
Second Circuit
Court of Appeals for the Second Circuit
F
USA, Federal
454,049
null
1985-05-23
false
sibaja-v-dow-chemical-co
Sibaja
Sibaja v. Dow Chemical Co
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "765 F.2d 154" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/765/765.F2d.154.83-5655.html", "author_id": null, "opinion_text": "765 F.2d 154\n Sibajav.Dow Chemical Co.\n 83-5655\n United States Court of Appeals,Eleventh Circuit.\n 5/23/85\n S.D.Fla., 757 F.2d 1215\n ", "ocr": false, "opinion_id": 454049 } ]
Eleventh Circuit
Court of Appeals for the Eleventh Circuit
F
USA, Federal
2,706,968
O'Grady
2014-02-25
false
pinnell-v-cugini-cappoccia-builders-inc
Pinnell
Pinnell v. Cugini & Cappoccia Builders, Inc.
null
null
null
null
null
null
null
null
null
null
null
null
3
Published
null
null
[ "2014 Ohio 669" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/10/2014/2014-ohio-669.pdf", "author_id": 8094, "opinion_text": "[Cite as Pinnell v. Cugini & Cappoccia Builders, Inc., 2014-Ohio-669.]\n\n IN THE COURT OF APPEALS OF OHIO\n\n TENTH APPELLATE DISTRICT\n\nChad Pinnell et al., :\n\n Plaintiffs-Appellees, :\n No. 13AP-579\nv. : (C.P.C. No. 09CV-9496)\n\nCugini & Cappoccia Builders, Inc. et al., : (REGULAR CALENDAR)\n\n Defendants-Appellants. :\n\n\n\n\n D E C I S I O N\n\n Rendered on February 25, 2014\n\n\n\n Anthony Law, LLC, Michael J. Anthony and Andrew H.\n Stevens, for appellees.\n\n Lane, Alton & Horst, LLC, Mary Barley McBride and\n Christopher R. Pettit, for appellants.\n\n APPEAL from the Franklin County Court of Common Pleas\n\nO'GRADY, J.\n\n {¶ 1} Defendants-appellants, Cugini & Cappoccia Builders, Inc. (\"C&C\"), Denis\nKing, and Paul Cugini (collectively \"appellants\"), appeal from a judgment of the Franklin\nCounty Court of Common Pleas denying their motion to stay this action pending\nmediation and arbitration on claims brought by plaintiffs-appellees, Chad Pinnell, David\nCavanaugh, and PinnellEstate, LLC. For the following reasons, we affirm.\nI. FACTS AND PROCEDURAL HISTORY\n {¶ 2} Appellees filed suit against appellants on June 24, 2009, and made the\nfollowing allegations. Pinnell was a commercial real estate agent specializing in leasing\nspace to medical professionals and was the sole member of PinnellEstate, LLC. Cugini\nand King were principals of C&C. Around Spring 2007, appellees, King, and Cugini\n\fNo. 13AP-579 2\n\n\ndiscussed the development of two properties in Columbus, Ohio. This case involves what\nthe parties refer to as the Dillmont Property.\n {¶ 3} According to the complaint, King, Cugini, and appellees agreed to build a\nmedical building on the Dillmont Property. King and Cugini, through C&C, would secure\nfinancing and construct the building. Pinnell/PinnellEstate would secure leases from\nmedical professions for the building, and Cavanaugh would handle general operations.\nPinnell/PinnellEstate and Cavanaugh were to each own a 25 percent share of the venture.\nKing filed Articles of Organization for Ufficio, LLC, which was created as a holding\ncompany for the Dillmont Property. Pinnell/PinnellEstate, Cavanaugh, and C&C entered\ninto an operating agreement for this entity, which appellees attached to the complaint.\nThough not mentioned in the complaint, the attachment is evidently a revised agreement\nsince King and Cugini, not C&C, were listed as members on the original agreement.\nAdditionally, the attached agreement does not mention PinnellEstate and refers to\n\"Ufficio, LTD.,\" not \"Ufficio, LLC.\"\n {¶ 4} The complaint further alleged Pinnell and his LLC began to secure leases,\nand, after construction of the building was complete, the Dillmont Property was sold in\nMay 2008 for net proceeds in excess of $800,000. However, the closing HUD incorrectly\nnamed C&C as the seller, so the proceeds went to King and Cugini. Cavanaugh and\nPinnell/PinnellEstate did not receive their full share of the proceeds. Therefore, appellees\nalleged C&C breached the operating agreement and alleged, among other things, that\nappellants had engaged in civil conspiracy.\n {¶ 5} On July 29, 2009, appellants filed their answer and C&C filed a\ncounterclaim against Pinnell and Cavanaugh for breach of the operating agreement.\nSpecifically, C&C alleged Pinnell and Cavanaugh each failed to make an initial capital\ncontribution of $20,000 in accordance with the agreement. C&C sought damages for this\nbreach.\n {¶ 6} The parties engaged in the discovery process. In October 2009, C&C filed a\nmotion to quash subpoenas and motion for a protective order because appellees issued\nsubpoenas to two banks seeking documents that purportedly contained C&C's trade\nsecrets. The trial court later issued an agreed protective order. In May 2010, appellees\nfiled a motion to compel C&C to respond to their discovery requests and a motion to add\n\fNo. 13AP-579 3\n\n\nparties and claims to the lawsuit. Appellants opposed both motions. In addition,\nappellees took the depositions of five people, including Cugini and King, and appellants\ntook the depositions of Pinnell and Cavanaugh.\n {¶ 7} On July 14, 2010, appellants filed a motion for summary judgment or, in the\nalternative, a motion to stay proceedings pending mediation and arbitration. Appellants\nargued they were entitled to summary judgment on all of appellees' claims. In part,\nappellants claimed the trial court should find the operating agreement terminated\nbecause Pinnell and Cavanaugh materially breached the agreement by failing to pay their\ninitial capital contribution in a reasonable time and execute personal guarantees on a\nconstruction loan. Appellants argued that if the trial court found genuine issues of\nmaterial fact existed for trial, the court should enforce Section 10.4 of the operating\nagreement and stay the proceedings pending mediation and arbitration.\n {¶ 8} Section 10.4 of the operating agreement provides:\n Mediation and Arbitration. Any claim, dispute or other\n matter in question arising out of or related to this Agreement\n shall be subject to mediation as a condition precedent to\n arbitration. The Members shall endeavor to resolve claims,\n disputes, and other matters in question between them by\n mediation which, unless the Members mutually agree\n otherwise, shall be in accordance with the rules of the\n American Arbitration Association currently in effect. Request\n for mediation shall be filed in writing with the other Members\n and with the American Arbitration Association. The request\n may be made concurrently with the filing of a demand for\n arbitration but, in such event, mediation shall proceed in\n advance of arbitration, which shall be stayed pending\n mediation for a period of 60 days from the date of filing,\n unless stayed for a longer period by agreement of the parties\n or court order. The Member losing the mediation and/or\n arbitration shall be responsible for the total costs of the\n proceedings, including attorney's fees for all Members and\n any and all mediation and/or arbitration fees. Agreements\n reached in mediation shall be enforceable as settlement\n agreements in any court having jurisdiction thereof.\n\n(R. 3, Complaint exhibit C, 25.)\n {¶ 9} In response, appellees argued appellants waived arbitration. Appellants\ncountered that Section 10.3(f) of the operating agreement required any waiver be in\n\fNo. 13AP-579 4\n\n\nwriting, and they never executed such a writing. Section 10.3(f) of the operating\nagreement states:\n Construction. The following shall be applicable in\n interpreting and construing the terms of this Agreement:\n\n ***\n\n (f) No provision of this Agreement shall be deemed to have\n been waived unless such waiver is contained in a written\n notice given by the party granting such waiver to the party\n claiming such waiver and no such waiver shall be deemed to\n be a waiver of any other or further obligation or liability of the\n other party or parties in whose favor the waiver was given or a\n waiver by any party not executing such waiver of any of its\n rights.\n\n(Exhibit C, 24.)\n\n {¶ 10} The trial court referred the matter to a magistrate for a ruling on the\noutstanding motions, a mediation conference, and trial. Regarding the motion to stay, the\nmagistrate found Section 10.4 of the operating agreement did not make mediation or\narbitration mandatory. In the alternative, the magistrate found appellants waived any\nright to compel mediation or arbitration despite the presence of Section 10.3(f) in the\noperating agreement. The magistrate explained:\n In Dynamark Security Centers, Inc. v. Charles, 9th Dist. No.\n 21254, 2003-Ohio-2156, ¶18, the Court held that even when\n an agreement contains an anti-waiver clause, the law protects\n against abuse of the right to arbitrate \"by providing that, when\n a party files suit, proceeds through the litigation process, and\n 'does not properly raise the arbitration provision of a contract\n before the trial court, [that party] is deemed to have waived\n arbitration.' \"\n\n(R. 138, Magistrate's Decision, 4-5.) The magistrate noted appellants answered the\ncomplaint without seeking arbitration and filed counterclaims alleging appellees breached\nthe operating agreement. \"The parties then engaged in extensive discovery, including,\naccording to [appellees], production of thousands of documents, the taking of eight\ndepositions, and the filing of motions related to discovery.\" (Magistrate's Decision, 4.)\nAppellants did not seek a stay for mediation and arbitration until after \"almost thirteen\n\fNo. 13AP-579 5\n\n\nmonths of litigation.\" (Magistrate's Decision, 4.) Thus, the magistrate found appellants\n\"asserted claims without seeking a stay, delayed in requesting a stay, participated in the\nlitigation, and engaged in acts inconsistent with arbitration that would prejudice\nPlaintiffs.\" (Magistrate's Decision, 5.) The magistrate denied the motion to stay and\nmotion for summary judgment.\n {¶ 11} In ruling on appellants' objections to the magistrate's decision, the trial\ncourt disagreed with the magistrate's interpretation of Section 10.4 of the operating\nagreement and found that provision made arbitration mandatory. Nonetheless, the trial\ncourt agreed with and adopted the magistrate's finding that appellants waived any right to\ncompel mediation or arbitration under the operating agreement. Thus, the trial court\ndenied the motion to stay. The trial court also found the magistrate properly denied\nappellants' motion for summary judgment.\nII. ASSIGNMENT OF ERROR\n {¶ 12} Appellants appeal and present one assignment of error for our review:\n The Trial Court Abused its Discretion and Committed\n Reversible Error by Denying Appellants Cugini & Cappoccia\n Builders, Inc., Denis King and Paul Cugini's Motion to Stay\n Further Proceedings Pending Mediation and Arbitration.\n\nIII. PRELIMINARY MATTERS\n {¶ 13} Initially, we note neither party appeals the trial court's finding that Section\n10.4 of the operating agreement makes arbitration mandatory. Also, the operating\nagreement only makes mediation a \"condition precedent to arbitration.\" Thus, like the\nparties, magistrate, and trial court, we will focus our analysis on arbitration, not\nmediation. Additionally, we note the complaint appears to only raise a breach of contract\nclaim against C&C and that claim is premised on the revised operating agreement.\nLikewise, only C&C filed a counterclaim against appellees; Cugini and King did not.\nNonetheless, in the proceedings on the motion to stay, the parties, magistrate, and trial\ncourt acted as though: (1) the complaint alleged a breach of contract action against all\nthree appellants, (2) all three appellants filed breach of contract counterclaims, and (3) all\nthree appellants had a right to arbitration under the operating agreement. Because the\nparties do not raise the issue, we will follow suit. Presumably, any breach of contract\nclaims involving Cugini and King are based on the original operating agreement because\n\fNo. 13AP-579 6\n\n\nthey were not listed as members to the revised agreement. However, because Sections\n10.3 and 10.4 are the same in the original and revised versions of the agreement, for the\nsake of simplicity, our analysis will simply refer to the \"operating agreement.\"\nIV. DISCUSSION\n {¶ 14} Under their sole assignment of error, appellants contend the trial court\nabused its discretion by denying their motion to stay pending mediation and arbitration.\n {¶ 15} \"Both the Ohio General Assembly and Ohio courts have expressed a strong\npublic policy favoring arbitration.\" Hayes v. Oakridge Home, 122 Ohio St.3d 63, 2009-\nOhio-2054, ¶ 15, citing R.C. Chapter 2711, Taylor Bldg. Corp. of Am. v. Benfield, 117 Ohio\nSt.3d 352, 2008-Ohio-938, ¶ 27, and Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471\n(1998). \" 'Arbitration is favored because it provides the parties thereto with a relatively\nexpeditious and economical means of resolving a dispute.' \" Kelm v. Kelm, 68 Ohio St.3d\n26, 29 (1993), quoting Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 712 (1992).\n\"Arbitration also has the additional benefit of unburdening crowded court dockets.\"\nHayes at ¶ 15, citing Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v.\nMahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 83 (1986). \"In light of the strong\npresumption favoring arbitration, all doubts should be resolved in its favor.\" Id., citing\nIgnazio v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, ¶ 18.\n {¶ 16} \"The General Assembly has endorsed the strong policy in favor of\narbitration of disputes in R.C. 2711.01(A), which provides that an arbitration agreement\n'shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or in\nequity for the revocation of any contract.' \" Hayes at ¶ 16. R.C. 2711.02 provides for\nenforcement of an arbitration agreement. A party to such an agreement may obtain a stay\nof litigation in favor of arbitration under R.C. 2711.02(B), which states:\n If any action is brought upon any issue referable to arbitration\n under an agreement in writing for arbitration, the court in\n which the action is pending, upon being satisfied that the\n issue involved in the action is referable to arbitration under an\n agreement in writing for arbitration, shall on application of\n one of the parties stay the trial of the action until the\n arbitration of the issue has been had in accordance with the\n agreement, provided the applicant for the stay is not in default\n in proceeding with arbitration.\n\fNo. 13AP-579 7\n\n\nMoreover, an order under R.C. 2711.02(B) that grants or denies a stay of a trial pending\narbitration \"is a final order and may be reviewed, affirmed, modified, or reversed on\nappeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with\nthose rules, Chapter 2505. of the Revised Code.\" R.C. 2711.02(C).\n {¶ 17} Our standard of review for a R.C. 2711.02(B) order depends on the nature of\nthe issues involved. See Dispatch Printing Co. v. Recovery Ltd. Partnership, 10th Dist.\nNo. 10AP-353, 2011-Ohio-80, ¶ 17. Here, the issue is whether appellants waived the right\nto arbitrate. \"The right to arbitration may be waived just like any other contractual right.\"\nId. at ¶ 19, citing Murtha v. Ravines of McNaughton Condominium Assn., 10th Dist. No.\n09AP-709, 2010-Ohio-1325, ¶ 20. \" ' \"[T]he question of waiver is usually a fact-driven\nissue and an appellate court will not reverse\" the trial court's decision \"absent a showing\nof an abuse of discretion.\" ' \" Morris v. Morris, 189 Ohio App.3d 608, 2010-Ohio-4750,\n¶ 17 (10th Dist.), quoting Murtha at ¶ 20, quoting ACRS, Inc. v. Blue Cross & Blue Shield\nof Minnesota, 131 Ohio App.3d 450, 456 (8th Dist.1998). The phrase \"abuse of\ndiscretion\" implies the trial court's attitude is arbitrary, unreasonable or unconscionable.\nBlakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).\n {¶ 18} \"A party asserting waiver must prove that the waiving party knew of the\nexisting right to arbitrate and, based on the totality of the circumstances, acted\ninconsistently with that known right.\" Dispatch Printing Co. at ¶ 21, citing Murtha at\n¶ 21. \"In determining whether the totality of the circumstances supports a finding of\nwaiver, a court may consider such factors as: (1) whether the party seeking arbitration\ninvoked the court's jurisdiction by filing a complaint or claim without first requesting a\nstay; (2) the delay, if any, by the party seeking arbitration to request a stay; (3) the extent\nto which the party seeking arbitration has participated in the litigation; and (4) whether\nprior inconsistent acts by the party seeking arbitration would prejudice the non-moving\nparty.\" Id., citing Tinker v. Oldaker, 10th Dist. No. 03AP-671, 2004-Ohio-3316, ¶ 20.\n\"Waiver attaches where there is active participation in a lawsuit evincing an acquiescence\nto proceeding in a judicial forum.\" Tinker at ¶ 21.\n {¶ 19} Initially, appellants claim the trial court erred when it found they waived\narbitration because, under Section 10.3(f) of the operating agreement, they could only\nwaive arbitration in writing, and they did not. However, as the magistrate and trial court\n\fNo. 13AP-579 8\n\n\nimplicitly recognized \"a written waiver provision, just like any other provision in a\ncontract, can be waived by actions of the parties.\" Snowville Subdivision Joint Venture\nPhase I v. Home S. & L. of Youngstown, Ohio, 8th Dist. No. 96675, 2012-Ohio-1342, ¶ 17,\nciting Glenmoore Builders, Inc. v. Smith Family Trust, 9th Dist. No. 24299, 2009-Ohio-\n3174, ¶ 41. Appellants also complain the trial court \"arbitrarily chose to enforce certain\nprovisions of the Operating Agreement that benefited [a]ppellees and, at the same time,\nchose to not enforce other provisions, including Section 10.3(f) and Section 10.4.\"\n(Appellants' brief, 23.) They contend the trial court should have enforced all or none of\nthe operating agreement. But the trial court's finding that appellants waived the right to\narbitrate did not somehow terminate the remainder of the operating agreement.\n {¶ 20} Next, appellants implicitly concede they knew about their right to arbitrate,\nbut appellants maintain they did not act inconsistently with that known right. However,\nappellants invoked the trial court's jurisdiction by filing a counterclaim for breach of the\noperating agreement without first requesting a stay. Additionally, they did not request a\nstay until over 12 months after appellees filed their complaint and over 11 months after\nappellants filed their answer and counterclaim. Appellants complain that, in other cases\nOhio courts have enforced arbitration provisions even though a party delayed for a similar\namount of time. This argument ignores the fact that no one factor is controlling in a\ntotality of the circumstances analysis.\n {¶ 21} Appellants also suggest they should not be penalized for the delay in\nrequesting a stay because they faced a \"Catch-22\" situation. (Appellants' brief, 20.)\nAppellants believed appellees \"failed to live up to their contractual obligations\" to the\npoint the operating agreement was \"unenforceable.\" (Appellants' brief, 19-20.) According\nto appellants, if they filed a motion to stay immediately after appellees initiated this\nlawsuit, appellants would have \"had to take the untenable position that the Operating\nAgreement was enforceable in one respect and unenforceable in all other respects.\"\n(Appellants' brief, 20.) So instead of filing a motion to stay, they chose to \"proceed with\nsome limited discovery on the enforceability of the Operating Agreement to determine if\nthere was any basis upon which to find that the * * * [a]greement was enforceable in spite\nof the [a]ppellees' breaches.\" (Appellants' brief, 20.) Appellants believed if they found\nsuch a basis, they could rely on Section 10.3(f) and compel arbitration.\n\fNo. 13AP-579 9\n\n\n {¶ 22} We find this argument unpersuasive. In their motion for summary\njudgment, appellants argued appellees materially breached the contract such that it had\nterminated. However, \"when a material breach occurs, the nonbreaching party 'may, at\nhis option, elect to rescind the contract, or continue it in force and sue for damages for the\nbreach.' \" Meyer v. Chieffo, 193 Ohio App.3d 51, 2011-Ohio-1670, ¶ 32 (10th Dist.),\nquoting Bryan Publishing Co. v. Kuser, 3d Dist. No. 7-07-17, 2008-Ohio-2610, ¶ 18.\nHere, appellants elected to sue for damages in their counterclaim. But even if they had\nrequested rescission, \"R.C. 2711.01(A) generally acknowledges that an arbitration clause\nis, in effect, a contract within a contract, subject to revocation on its own merits.\" Gordon\nv. OM Fin. Life Ins. Co., 10th Dist. No. 08AP-480, 2009-Ohio-814, ¶ 9, citing ABM\nFarms, Inc. v. Woods, 81 Ohio St.3d 498, 501 (1998), and Battle v. Bill Swad Chevrolet,\nInc., 140 Ohio App.3d 185 (10th Dist.2000). \"Because the arbitration clause is a separate\nentity, an alleged failure of the contract in which it is contained does not affect the\narbitration provision itself.\" Id., citing Battle at 189, citing ABM Farms, Inc. at 501. See\ngenerally Tomovich v. USA Waterproofing & Found. Servs., Inc., 9th Dist. No.\n07CA009150, 2007-Ohio-6214, ¶ 18 (Noting if court accepted party's argument that\narbitration clause could not be enforced because the party rescinded the contract at issue,\n\"any party who asserts that he or she has rescinded a contract could avoid enforcement of\nan otherwise valid arbitration agreement.\").\n {¶ 23} In addition, despite their claims to the contrary, appellants have extensively\nparticipated in this litigation. Appellants engaged in the discovery process. They took\ndepositions, had their depositions taken, and admittedly propounded written discovery\nrequests. They invoked the court's assistance in discovery matters by filing a motion to\nquash subpoenas and motion for a protective order. They filed an initial and\nsupplemental disclosure of witnesses. They challenged appellees' motion to compel\ndiscovery and motion to add parties and claims to the lawsuit. Moreover, they filed a\nmotion for summary judgment and asked the court to rule in their favor on the merits of\nappellees' claims. Appellants filed the motion to stay less than two and one-half months\nbefore the September 27, 2010 trial date and only as an alternative in the event they\nreceived an unfavorable ruling on the summary judgment motion. Such conduct amounts\nto forum shopping. Am. Gen. Fin. v. Griffin, 8th Dist. No. 99088, 2013-Ohio-2909, ¶ 22.\n\fNo. 13AP-579 10\n\n\n {¶ 24} Finally, appellants argue arbitration would not prejudice appellees. In\nresponse, appellees argue arbitration will \"only delay this case longer, causing both\nparties to incur more legal fees and wasted resources.\" (Appellees' brief, 31.) Appellees'\nclaim is somewhat vague. Nonetheless, even without a specific example of prejudice, we\nconclude the trial court did not abuse its discretion in finding, under the totality of the\ncircumstances, appellants acted inconsistently with their right to arbitrate. The record\nsupports the conclusion that appellants took an active role in this lawsuit, evincing their\nacquiescence to proceeding in a judicial forum, and only wanted arbitration in the event\nthe trial court issued an unfavorable ruling on their motion for summary judgment.\nAppellants' assignment of error is overruled.\nV. CONCLUSION\n {¶ 25} For the foregoing reasons, we overrule appellants' sole assignment of error\nand affirm the judgment of the Franklin County Court of Common Pleas.\n Judgment affirmed.\n\n BROWN and CONNOR, JJ., concur.\n\f", "ocr": false, "opinion_id": 2706968 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
1,122,946
Chapel, Johnson, Lane, Lumpkin, Strubhar
1996-10-31
false
traywicks-v-state
Traywicks
Traywicks v. State
Wayne Bernard TRAYWICKS, Appellant, v. the STATE of Oklahoma, Appellee
James T. Rowan, Michael Wilson, Okla. Indigent Defense System, Capital Trial Division, Norman, for Defendant., Don Deason, Virginia Nettleton, Assistant District Attorneys, Oklahoma City, for State., William R. Foster, Norman, for Appellant., W.A. Drew Edmondson, Attorney General, Elaine K. Sanders, Assistant Attorney General, Oklahoma City, for Appellee.
null
null
null
null
null
null
null
null
null
null
7
Published
null
<parties id="b1114-3"> Wayne Bernard TRAYWICKS, Appellant, v. The STATE of Oklahoma, Appellee. </parties><br><docketnumber id="b1114-6"> No. F-95-771. </docketnumber><br><court id="b1114-7"> Court of Criminal Appeals of Oklahoma. </court><br><decisiondate id="b1114-8"> Oct. 31, 1996. </decisiondate><br><attorneys id="b1114-26"> James T. Rowan, Michael Wilson, Okla. Indigent Defense System, Capital Trial Division, Norman, for Defendant. </attorneys><br><attorneys id="b1114-27"> Don Deason, Virginia Nettleton, Assistant District Attorneys, Oklahoma City, for State. </attorneys><br><attorneys id="b1114-28"> William R. Foster, Norman, for Appellant. </attorneys><br><attorneys id="b1115-3"> <span citation-index="1" class="star-pagination" label="1063"> *1063 </span> W.A. Drew Edmondson, Attorney General, Elaine K. Sanders, Assistant Attorney General, Oklahoma City, for Appellee. </attorneys>
[ "927 P.2d 1062" ]
[ { "author_str": "Chapel", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5410, "opinion_text": "\n927 P.2d 1062 (1996)\nWayne Bernard TRAYWICKS, Appellant,\nv.\nThe STATE of Oklahoma, Appellee.\nNo. F-95-771.\nCourt of Criminal Appeals of Oklahoma.\nOctober 31, 1996.\nJames T. Rowan, Michael Wilson, Okla. Indigent Defense System, Capital Trial Division, Norman, for Defendant.\nDon Deason, Virginia Nettleton, Assistant District Attorneys, Oklahoma City, for State.\nWilliam R. Foster, Norman, for Appellant.\n*1063 W.A. Drew Edmondson, Attorney General, Elaine K. Sanders, Assistant Attorney General, Oklahoma City, for Appellee.\n\nOPINION\nCHAPEL, Vice Presiding Judge:\nWayne Bernard Traywicks was tried by a jury and convicted of Second Degree Murder, in violation of 21 O.S.1991, § 701.8, in the District Court of Oklahoma County, Case No. CRF-93-7824. In accordance with the jury's recommendation, the Honorable Nancy Coats sentenced Traywicks to 250 years imprisonment. Traywicks has perfected his appeal of this conviction.\nTraywicks raises the following propositions of error in support of his appeal:\nI. The trial court's refusal to continue Mr. Traywicks' trial or bar Officer Bevel's expert testimony prevented appellant from receiving a fair trial and effective assistance of counsel;\nII. Prosecutorial misconduct denied Mr. Traywicks a fair trial in violation of United States and Oklahoma Constitutions; and\nIII. Prejudicial photographs prevented Mr. Traywicks from receiving a fair trial.\nAfter thorough consideration of the entire record before us on appeal including the original record, transcripts, briefs and exhibits of the parties, we have determined that neither reversal nor modification is required under the law and evidence. Accordingly, Traywicks' appeal is denied. However, we find that the issues posed in Proposition II of Traywicks' brief raise issues of first impression before this Court. We will address those issues more fully below. Because Propositions I and III do not raise novel issues and because relief is not warranted under either proposition of error we will not address those propositions any further.\nIn Proposition II, Traywicks argues that error occurred when the prosecutor referred to Traywicks' post-arrest, post-Miranda[1] silence. For the reasons stated below, we agree that error occurred but find that this error was harmless.\nThe State charged Traywicks with First Degree Murder and filed a Bill of Particulars seeking the death penalty. Traywicks was convicted of the lesser offense of second degree murder, after former conviction of a felony, and was sentenced to 250 years imprisonment.\nTraywicks killed his common-law wife, Yvonne Washington. Traywicks and Washington were alcoholics. Traywicks also used crack cocaine occasionally. Traywicks and Washington had a volatile relationship, which was described as mutually combative. During the early evening of December 10, 1993, Traywicks beat Washington to death with a baseball bat. At the time of the murder, both Washington and Traywicks were drunk.\nAt trial, Traywicks raised the issue of mental defect/alcoholism as a defense. He called several mental health experts to testify about his mental condition at the time of Washington's murder, and he testified in his own behalf. During cross-examination of Traywicks, the prosecutor asked him whether he told Dr. Call (the State's mental health expert) about Washington's murder. Defense counsel objected to the question; the trial court overruled the objection. Traywicks then replied he had not told Dr. Call about the murder itself. On redirect, Traywicks stated Dr. Call did not ask him any questions about the day of the murder. In rebuttal, the State called Dr. Call, who testified that he had asked Traywicks about Washington's murder but that Traywicks refused to answer questions about those events. Dr. Call also testified about Traywicks' mental condition at the time of the crime, and it is evident that Traywicks discussed issues concerning his mental health with Dr. Call. Defense counsel did not object to Dr. Call's testimony.\nTraywicks argues that testimony concerning his refusal to answer Dr. Call's questions about Washington's murder violates his Fifth Amendment right to remain silent. In Doyle v. Ohio,[2] the Supreme Court held that a defendant's silence after he has been arrested and has been given his Miranda warnings cannot be used at trial to impeach *1064 the defendant.[3] Traywicks argues that the trial court violated his right to remain silent and the holding in Doyle by allowing the State to impeach him with evidence regarding his refusal to answer Dr. Call's questions about Washington's murder.\nDoyle applies only after Miranda warnings have been given, and pre-Miranda silence may be used to impeach a defendant.[4] According to Traywicks' trial counsel, Miranda warnings were not given to Traywicks prior to his speaking with Dr. Call. The State argues that since Traywicks did not receive any Miranda warnings prior to talking with Dr. Call, Doyle is not applicable, or alternatively, that Traywicks waived his right to silence. We reject the State's argument as it is evident that under certain circumstances the State is required to give the defendant Miranda warnings prior to an examination by a State psychiatrist, and Traywicks did not waive his right to silence as to the facts of the crime itself.\nIn Estelle v. Smith,[5] the Supreme Court found that a defendant was sentenced to death in violation of the Fifth and Sixth Amendments where, during the sentencing phase of trial, the State sought to prove future dangerousness by introducing unwarned statements that the defendant had made to a state psychiatrist in a pretrial competency examination. The trial court ordered the competency examination sua sponte and defense counsel was not notified and was not subsequently made aware of the proceeding. The Supreme Court stated:\nA criminal defendant, who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to respond to a psychiatrist if his statements can be used against him at a capital sentencing proceeding. Because respondent did not voluntarily consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements, the State could not rely on what he said to Dr. Grigson [the State's psychiatrist] to establish his future dangerousness.[6]\nThe Supreme Court limited this ruling. The Court stated \"[w]hen a defendant asserts the insanity defense and introduces supporting psychiatric testimony, his silence may deprive the State of the only effective means it has of controverting his proof on an issue that he interjected into the case. Accordingly, several Federal Circuit Courts of Appeals have held that, under such circumstances, a defendant can be required to submit to a sanity examination conducted by the prosecution's psychiatrist.\"[7] Commentators have construed Estelle to indicate a willingness on the Court's part to find that where a defendant initiates psychiatric proceedings or where the State requests an evaluation of the defendant based on the defendant's decision to raise an insanity defense, he waives his Fifth Amendment privilege.[8]\nThis analysis is consistent with United States v. Byers,[9] in which a federal court found that the testimony of a psychiatrist who conducted a court-ordered examination of the defendant did not violate the Fifth Amendment. The court observed that requiring Miranda warnings for a psychiatric examination of a defendant, who has raised an insanity or related mental health defense, would enable the defendant to deprive the State of the ability to conduct a mental health examination to rebut his claim of insanity.[10]*1065 Following Estelle, and in accord with Byers, the Supreme Court in Buchanan v. Kentucky,[11] stated \"if a defendant requests... [a psychiatric] evaluation or presents psychiatric evidence, then, at the very least, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. The defendant would have no Fifth Amendment privilege against the introduction of this psychiatric testimony by the prosecution.\"\nIn Hain v. State,[12] the defendant raised the issue of insanity and the State received the trial court's permission to allow its expert to examine Hain. The State used Hain's statements made during this examination to rebut his defense of insanity. This Court approved the practice, and found that the use of this testimony did not violate Hain's Fifth Amendment right against self-incrimination. Thus, it is clear that when a defendant raises an insanity defense and is required to submit to a mental health examination by the State's expert, the State may introduce the results of the examination to rebut the defendant's insanity defense.\nHowever, it does not appear that the State's expert is granted carte blanche in examining the defendant. The Hain Court further stated the following:\nthe [State's mental health] testimony ... was admitted solely for the purpose of rebutting Appellant's evidence of extreme emotional disturbance. Dr. Goodman did not testify about any of the criminal acts giving rise to the action against Appellant. From the record, it appears that Appellant was apparently advised of his rights in this regard and declined to discuss the details of the crime with the doctor. A violation of the Fifth Amendment may only arise when the testimony involved is based on the incriminating statements of the defendant. There is no evidence of that here, thus, there is no reason for the exclusion of the evidence.[13]\nThus, while the defendant may be compelled to answer questions about his mental health, a constitutional violation may occur if the defendant is compelled to reveal details of the crime itself to the State's mental health expert. This distinction makes sense. The State needs the mental health evidence to rebut the insanity defense, and it seems logical that raising that defense waives the defendant's right to silence as to those mental health issues. However, evidence of the crime itself is a distinct and different question from the issue of mental illness. Accordingly, the defendant retains the right to assert his Fifth Amendment privilege as to the details of the crime. Of course, the defendant could waive his privilege to remain silent as to the details of the crime, but that waiver would have to be done knowingly and voluntarily after the administration of Miranda warnings.\nIn Traywicks' case, the State revealed that during the examination by the State's psychiatrist, Traywicks refused to answer questions about Washington's murder. It would seem that since Traywicks could not be compelled to discuss the murder with Dr. Call without being advised of his rights and waiving those rights, it would be error for the State to comment on or elicit evidence about his assertion of that right. The trial court erred when it allowed the State to question Traywicks about his refusal to answer this question. Similarly, the State should not have questioned Dr. Call about Traywicks' refusal to answer such questions.[14]\nHowever, even though the admission of this evidence was error, we find this error was harmless. The jury found Traywicks guilty of the lesser offense of second degree murder. He admitted he killed Washington, and it is clear the jury accepted his version of *1066 the murder. Evidence regarding his decision to decline to answer Dr. Calls' questions about the murder did not prejudice him and was harmless beyond a reasonable doubt. For this reason, we deny Traywicks' appeal.\n\nDECISION\nThe Judgment and Sentence of the trial court is AFFIRMED.\nJOHNSON, P.J., and LANE and STRUBHAR, JJ., concur.\nLUMPKIN, J., concurs in results.\nNOTES\n[1] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).\n[2] 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).\n[3] Accord Parks v. State, 765 P.2d 790, 793 (Okl.Cr.1988); Kreijanovsky v. State, 706 P.2d 541, 543-44 (Okl.Cr.1985); Dungan v. State, 651 P.2d 1064, 1065-66 (Okl.Cr.1982).\n[4] Fletcher v. Weir, 455 U.S. 603, 607, 102 S. Ct. 1309, 1312, 71 L. Ed. 2d 490 (1982); Guy v. State, 778 P.2d 470, 474 (Okl.Cr.1989).\n[5] 451 U.S. 454, 468-69, 101 S. Ct. 1866, 1876, 68 L. Ed. 2d 359 (1981).\n[6] Estelle v. Smith, 451 U.S. at 468, 101 S.Ct. at 1876.\n[7] Estelle, 451 U.S. at 465, 101 S.Ct. at 1874.\n[8] C.H. Whitebread and C. Slobogin, Criminal Procedure, An Analysis of Cases and Concepts at 350 (1993).\n[9] 740 F.2d 1104, 1115 (D.C.Cir.1984) (plurality opinion). The State erroneously attributes this decision to the Tenth Circuit.\n[10] Id.\n[11] 483 U.S. 402, 422-23, 107 S. Ct. 2906, 2918, 97 L. Ed. 2d 336 (1987) (citing with approval United States v. Byers, 740 F.2d 1104, 1111-1113 (D.C.Cir.1984) (plurality opinion)).\n[12] 852 P.2d 744, 751-52 (Okl.Cr.1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1402, 128 L. Ed. 2d 75 and ___ U.S. ___, 114 S. Ct. 1416, 128 L. Ed. 2d 86 (1994).\n[13] Id. at 751.\n[14] Defense counsel did not object to Dr. Call's testimony. We review this testimony for plain error only.\n\n", "ocr": false, "opinion_id": 1122946 } ]
Court of Criminal Appeals of Oklahoma
Court of Criminal Appeals of Oklahoma
SA
Oklahoma, OK
1,861,134
Blue, Boslaugh, Brodkey, Clinton, McCown, Spencer, White
1979-01-24
false
state-v-daly
Daly
State v. Daly
State of Nebraska, Appellee, v. Thomas Daly, Appellant
Dennis L. Blewitt; Padley & Dudden, P.C. and David T. Schroeder, for appellant., Paul L. Douglas, Attorney General, and Paul W. Snyder, for appellee.
null
null
null
null
null
null
null
null
null
null
69
Published
null
<parties id="b233-9"> State of Nebraska, appellee, v. Thomas Daly, appellant. </parties><br><citation id="b233-11"> 274 N. W. 2d 557 </citation><br><decisiondate id="b233-12"> Filed January 24, 1979. </decisiondate><docketnumber id="Azz"> No. 42129. </docketnumber><br><attorneys id="b233-16"> Dennis L. Blewitt; Padley &amp; Dudden, P.C. and David T. Schroeder, for appellant. </attorneys><br><attorneys id="b233-17"> Paul L. Douglas, Attorney General, and Paul W. Snyder, for appellee. </attorneys><br><judges id="b233-18"> Heard before Spencer, C. J., Pro Tem., Boslaugh, McCown, Clinton, Brodkey, and White, JJ., and Blue, District Judge. </judges>
[ "274 N.W.2d 557", "202 Neb. 217" ]
[ { "author_str": "Spencer", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5030, "opinion_text": "\n274 N.W.2d 557 (1979)\n202 Neb. 217\nSTATE of Nebraska, Appellee,\nv.\nThomas DALY.\nNo. 42129.\nSupreme Court of Nebraska.\nJanuary 24, 1979.\nDavid T. Schroeder, Ogallala, Dennis L. Blewitt, Boulder, Colo., for appellant.\nPaul L. Douglas, Atty. Gen., Paul W. Snyder, Asst. Atty. Gen., Lincoln, for appellee.\nHeard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and BLUE, District Judge.\nSPENCER, Chief Justice Pro Tem.\nDefendant, Thomas Daly, prosecutes this appeal from his conviction for possession of marijuana. His sole assignment of error is the denial of his motion to suppress evidence seized from his motor vehicle. Essentially, the issue is whether the smell of marijuana is sufficient to furnish probable cause for the warrantless search of a motor vehicle. We affirm.\n*558 At 8:55 p. m., on March 8, 1977, officer Byron R. Lane of the Nebraska State Patrol, while traveling west on Interstate Highway No. 80 approximately 1½ miles east of the Ogallala interchange, observed defendant's vehicle traveling eastbound on the interstate. Using a radar gun, the officer clocked the speed of defendant's vehicle at 60 miles per hour, or 5 miles over the maximum speed limit. Officer Lane made a U-turn, pursued the vehicle, and pulled it over to the side of the road.\nLane met defendant near the left rear of defendant's vehicle, a pickup with a fiberglass shell covering the rear portion. He asked to see the driver's license and registration certificate of the defendant, which he produced. Lane then walked to the front of the pickup, accompanied by defendant, to check whether it had a front license plate. Lane testified while walking alongside the pickup he detected a faint odor of raw marijuana which he believed was coming from the rear of the vehicle.\nLane directed defendant to take a seat in the patrol car. He issued a warning ticket for speeding and then asked defendant whether there was any marijuana in his vehicle. Defendant replied \"No.\" Lane then requested permission to look inside the vehicle, which defendant refused. At that time Lane advised defendant he had smelled marijuana in the vehicle. They left the patrol car and walked to the rear of defendant's vehicle where Lane again advised defendant he could smell marijuana. He asked defendant to open the rear of the pickup. Defendant asked what the procedure was. At that time Lane placed defendant under arrest and gave him the Miranda warnings. Defendant then opened the rear of the pickup.\nWhen the rear door of the pickup was opened, Lane could smell a strong odor of marijuana. Inside he found several large boxes and a large plastic bag containing marijuana. The marijuana was in kilo form wrapped in cellophane and paper. The parties stipulated that 582 pounds of marijuana were removed from the vehicle.\nOfficer Lane has been a member of the Nebraska State Patrol since November 1974. During basic training and on-the-job training he had received instruction in drug recognition, including marijuana. He had also made approximately 50 prior arrests for possession of marijuana. All of these arrests followed stops for traffic violations and were made after the officer smelled marijuana.\nAs previously stated, the sole issue is whether the smell of marijuana standing alone is sufficient to furnish probable cause for the warrantless search of a motor vehicle. We have held that it is. See State v. Benson, 198 Neb. 14, 251 N.W.2d 659 (1977), where we held: \"Testimony that an officer smelled a strong odor of marijuana is sufficient to furnish probable cause to search a vehicle without a warrant, at least where there is sufficient foundation as to the expertise of the officer.\"\nIn State v. Benson, supra, we said: \"The great majority of courts which have currently passed upon the issue have held that the smell of marijuana was alone sufficient to furnish probable cause to search a vehicle without a warrant, at least where there is sufficient foundation as to expertise. See, State v. Wood, 195 Neb. 353, 238 N.W.2d 226; United States v. Soloman, 528 F.2d 88 (9th Cir., 1975); People v. Cook, 13 Cal.3rd 663, 119 Cal.Rptr. 500, 532 P.2d 148 (1975); Gordon v. State, 259 Ark. 134, 529 S.W.2d 330 (1976); United States v. Garza, 539 F.2d 381 (5th Cir., 1976); United States v. Bowman, 487 F.2d 1229 (10th Cir., 1973); State v. Bidegain, 88 N.M. 384, 540 P.2d 864 (1975).\"\nIn United States v. Rankin, 572 F.2d 503 (1978), the Fifth Circuit Court of Appeals said: \"The trial court also was correct in denying defendant's motion to suppress the evidence obtained from the search of the automobile trunk. The initial stop was justified because this checkpoint is permanent, and the subsequent olfactory identification of the marijuana gave the agent probable cause to search the trunk. See, e. g., United States v. Vale, 5 Cir., 1977, 558 F.2d 237.\" Certiorari was denied by the United *559 States Supreme Court. See ___ U.S. ___, 99 S.Ct. 564, 58 L.Ed.2d ___ (1978).\nTo the list of cases cited above we add State v. Kretchmar, 201 Neb. 308, 267 N.W.2d 740 (1978), wherein we stated: \"Subsequent to the stop, by the use of his senses the trooper became aware of the presence of marijuana. A trained officer should have no difficulty in smelling 460 pounds of marijuana. At that time, under our law, the officer had probable cause to search the automobile for marijuana without the necessity of relying on consent.\"\nIn State v. Romonto, 190 Neb. 825, 212 N.W.2d 641 (1973), we said: \"An officer is entitled to rely on his senses in determining whether contraband is present in a vehicle. If contraband is seen or smelled, the officer is not required to close his eyes or nostrils, walk away, and leave the contraband where he sees or smells it. State v. Carpenter, 181 Neb. 639, 150 N.W.2d 129. Probable cause may result from the use of any of the senses. State v. Connor, 189 Neb. 269, 202 N.W.2d 172.\"\nThe stop in this case was a valid stop. The defendant was exceeding the speed limit. The officer had a right to be where he was, and when he detected the odor of marijuana there was probable cause for the arrest and search. The judgment is affirmed.\nAFFIRMED.\n", "ocr": false, "opinion_id": 1861134 } ]
Nebraska Supreme Court
Nebraska Supreme Court
S
Nebraska, NE
448,239
Hancock, Hatchett, Kravitch
1985-03-19
false
united-states-v-wendell-cole-howard-masters-bk-taylor-larry-masters
null
United States v. Wendell Cole, Howard Masters, B.K. Taylor, Larry Masters, Defendants
UNITED STATES of America, Plaintiff-Appellee, v. Wendell COLE, Howard Masters, B.K. Taylor, Larry Masters, Defendants-Appellants
G. Russell Petersen, Vero Beach, Fla., defendant-appellant H. Masters., Bruce Wilkinson, Stuart, Fla., for defendants-appellants B.K. Taylor and L. Masters., Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant W. Cole., Samuel J. Smargon, Linda C. Hertz, Sonia Escobio O’Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.
null
null
null
null
null
null
null
null
null
null
137
Published
null
<parties data-order="0" data-type="parties" id="b836-12"> UNITED STATES of America, Plaintiff-Appellee, v. Wendell COLE, Howard Masters, B.K. Taylor, Larry Masters, Defendants-Appellants. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b836-16"> No. 82-5455. </docketnumber><br><court data-order="2" data-type="court" id="b836-17"> United States Court of Appeals, Eleventh Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b836-18"> March 19, 1985. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b841-7"> <span citation-index="1" class="star-pagination" label="753"> *753 </span> G. Russell Petersen, Vero Beach, Fla., defendant-appellant H. Masters. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b841-8"> Bruce Wilkinson, Stuart, Fla., for defendants-appellants B.K. Taylor and L. Masters. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b841-9"> Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant W. Cole. </attorneys><br><attorneys data-order="7" data-type="attorneys" id="b841-10"> Samuel J. Smargon, Linda C. Hertz, Sonia Escobio O’Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee. </attorneys><br><p data-order="8" data-type="judges" id="b841-12"> Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK <a class="footnote" href="#fn*" id="fn*_ref"> * </a> , District Judge. </p><div class="footnotes"><div class="footnote" data-order="9" data-type="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b841-18"> Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation. </p> </div></div>
[ "755 F.2d 748" ]
[ { "author_str": "Hatchett", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/755/755.F2d.748.82-5455.html", "author_id": null, "opinion_text": "755 F.2d 748\n UNITED STATES of America, Plaintiff-Appellee,v.Wendell COLE, Howard Masters, B.K. Taylor, Larry Masters,Defendants- Appellants.\n No. 82-5455.\n United States Court of Appeals,Eleventh Circuit.\n March 19, 1985.\n \n G. Russell Petersen, Vero Beach, Fla., defendant-appellant H. Masters.\n Bruce Wilkinson, Stuart, Fla., for defendants-appellants B.K. Taylor and L. Masters.\n Robyn J. Hermann, Asst. Federal Public Defender, Miami, Fla., for defendant-appellant W. Cole.\n Samuel J. Smargon, Linda C. Hertz, Sonia Escobio O'Donnell, Asst. U.S. Attys., Miami, Fla., for plaintiff-appellee.\n Appeals from the United States District Court for the Southern District of Florida.\n Before KRAVITCH and HATCHETT, Circuit Judges, and HANCOCK*, District Judge.\n HATCHETT, Circuit Judge:\n \n \n 1\n In this criminal drug case, we review the district court's order entering judgment against appellants. We affirm.\n \n Facts\n \n 2\n Sometime between October, 1977, and July, 1981, Donald Raulerson organized a marijuana smuggling operation. As a result, Raulerson imported more than 500,000 pounds of marijuana and earned over $100 million dollars. Although a large number of co-conspirators are involved in this case, for purposes of this appeal we review the convictions of Wendell Cole, Howard Masters, Larry Masters, and B.K. Taylor.\n \n \n 3\n Early in the enterprise, Raulerson recruited Jose Pena and instructed him to go to Texas and purchase $5,000 worth of marijuana. In accordance with Raulerson's instruction, Pena went to Texas and purchased 30 pounds of marijuana at $150 per pound. Pena kept the remaining $500 as expense money; he delivered the marijuana to Raulerson.\n \n \n 4\n On numerous occasions during the spring and early summer of 1978, Raulerson employed small airplanes to import marijuana from Colombia, South America. On each trip, the airplanes brought more than 1,000 pounds of marijuana into the United States. Raulerson, with the help of appellant, Howard Masters, and James Taylor, made the necessary arrangements for each load. Jose Pena, Guy Brown, Sam Stefanides, Jerry Raulerson, and appellants, Larry Masters and B.K. Taylor offloaded the marijuana from airplanes at various drop off points in south Florida.\n \n \n 5\n Raulerson also used vessels to import marijuana. On several occasions, Raulerson's offloading crew moved more than 6,000 bales of marijuana from vessels located behind appellant, Taylor's, home. Occasionally, Raulerson's crew loaded the marijuana into vans and delivered it to other parties by leaving the vans at prearranged sites.\n \n \n 6\n In October, 1978, Raulerson supplied Pena with $500,000 of front money and instructed Pena to purchase marijuana for Raulerson's smuggling operations. Pena went to Colombia, South America, and met with Enrique Coronado, Raulerson's South American supplier. While in South America, Pena arranged for 100,000 pounds of marijuana to be imported to the United States on a 200-foot freighter; the marijuana was to be offloaded near Marathon, Florida. Pena and a crew of sixteen people returned to the United States aboard this freighter.\n \n \n 7\n Later, on December 28, 1978, the freighter, BP25, came within seventy miles east of Marathon, Florida. Crewmen, on three shrimp boats, met this vessel. The crewmen offloaded the marijuana into the smaller vessels. The marijuana was offloaded, counted, weighed, and distributed at a house leased by Donald Raulerson in the Marathon, Florida, area. Appellant, B.K. Taylor, supervised the offloading crew which was composed of approximately thirty people including Guy Brown, Jorge Pena (Jose Pena's brother), Sam Stefanides, appellant, L. Masters, and appellant, Wendell Cole.\n \n \n 8\n During the offloading process, appellant, L. Masters, assisted Sam Stefanides weigh the marijuana. The offloading process took approximately three days. For this three-day period, Donald Raulerson resided in a nearby motel with appellant, Howard Masters, and Billy Morris. These men examined the marijuana and made arrangements for its delivery and distribution. Appellant, Wendell Cole, along with other offloaders, drove a truck loaded with marijuana from Marathon, Florida, to Naples, Florida.\n \n \n 9\n On March 27, 1979, Jose Pena, Sam Stefanides, and appellant, Taylor, went to Colombia, South America, with $1 million and instructions from Donald Raulerson to arrange another \"Marathon marijuana deal.\" The three men carried the $1 million dollars in three or four suitcases. They arrived in Colombia on a commercial airplane and were met at the airport by Coronado's employees. Appellant, Taylor, helped Stefanides and Pena carry the money while in Colombia.\n \n \n 10\n Pena and Coronado discussed the amount of marijuana to be imported and the price. They concluded that 100,000 pounds of marijuana would be shipped to the United States at $70 a pound. Donald Raulerson, Billy Morris, and Jose Pena owned this load of marijuana. The freighter, BP25, was used to import the marijuana. Upon arrival, this vessel was offloaded onto three large fishing vessels near Biloxi, Mississippi. Two of the three large fishing vessels were seized by local authorities in Biloxi. The third vessel, however, was offloaded on the gulf coast of Florida.\n \n \n 11\n On August 27, 1979, Pena met with Donald Raulerson, Robert Ewan, Jr., Billy Morris, and Enrique Coronado. At this meeting, Pena informed Coronado that the vessel's seizure was not his fault because he had nothing to do with the choice of locations taken by the boats. The working relationship between Pena and Raulerson deteriorated; Pena never worked for Raulerson again. The remaining salient facts are in the discussion below.\n \n Issues\n \n 12\n On appeal, we must determine: (1) whether the evidence was sufficient to convict Howard Masters and Larry Masters of conspiracy to import marijuana; (2) whether the evidence was sufficient to convict Larry Masters of attempted importation of marijuana; (3) whether the district court erred in denying appellants' motion to inspect grand jury records; (4) whether the district court erred in denying appellants' motion to dismiss Count II of the indictment; (5) whether the district court erred in denying appellants' request for a bill of particulars; (6) whether the evidence was sufficient to support a jury finding that the substance in question was marijuana; (7) whether the district court properly denied the motions for severance of appellants B.K. Taylor, Larry Masters, and Howard Masters; (8) whether appellant Taylor was deprived of due process of law and his right to a fair trial; (9) whether the district court properly denied appellant, Cole's, request for a judgment of acquittal on the theory of multiple conspiracies; (10) whether the district court abused its discretion in admitting the tape recordings into evidence; (11) whether the opening statement and closing arguments presented by the government were improper; and (12) whether the district court erred in denying appellant, Larry Masters, adopted challenges to the composition of the grand jury. We will consider these issues in turn.\n \n Discussion\n \n 13\n I. Sufficiency of the Evidence to Sustain the Convictions of Appellants Howard Masters and Larry Masters.\n \n \n 14\n Howard Masters and Larry Masters contend that the evidence produced against them was legally insufficient to support the jury's verdict, and, therefore, they were entitled to judgments of acquittal. In reviewing this issue, we must determine whether, viewing the evidence in the light most favorable to the government, a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt as to each appellant. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983); see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). All reasonable inferences must be drawn in favor of the jury's verdict. United States v. Ceballos, 706 F.2d 1198, 1202 (11th Cir.1983). Moreover, credibility choices in deciding which version of a story to believe are a matter for the jury. United States v. Branca, 677 F.2d 59, 61 (11th Cir.1982).\n \n \n 15\n This circuit does not require that the evidence preclude every reasonable hypothesis of innocence. Rather, we determine whether a reasonable jury could find that the evidence establishes appellants' guilt beyond a reasonable doubt. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). The government, however, need not prove that the facts of the case are inconsistent with the defense's theory of the case. The jury is free to choose among alternative reasonable constructions of the evidence. Bell, 678 F.2d at 549.\n \n \n 16\n The jury convicted Larry Masters of conspiracy to import and attempted importation of marijuana. It convicted Howard Masters of conspiracy to import marijuana.\n \n \n 17\n To sustain the convictions on the conspiracy counts, we must be satisfied that the government proved beyond a reasonable doubt that these appellants had \"deliberate, knowing, specific intent to join the conspiracy.\" United States v. DeSimone, 660 F.2d 532, 537 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 1027, 102 S.Ct. 1732, 72 L.Ed.2d 149 (1982) (citing United States v. Morado, 454 F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972)).\n \n \n 18\n It is well-settled law that participation in a conspiracy need not be proved by direct evidence. United States v. Arredondo-Morales, 624 F.2d 681, 683 (5th Cir.1980). A common purpose and plan may be inferred from the actions of the actors or by circumstantial evidence of a scheme. United States v. Conway, 632 F.2d 641, 643 (11th Cir.1980). To be sure, participation in a criminal conspiracy can be inferred from a \"development and collection of circumstances.\" United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.1981), cert. denied, 444 U.S. 846, 100 S.Ct. 91, 62 L.Ed.2d 59 (quoting Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942)).\n \n \n 19\n To prove the existence of a conspiracy, the government must show an agreement or common purpose to violate the law. United States v. Watson, 669 F.2d 1374, 1379 (11th Cir.1982). Each defendant must have joined the conspiracy intentionally, but each need not be privy to all the details of the conspiracy, or be aware of all the other conspirators, or participate in every stage of the conspiracy. Watson, 669 F.2d at 1379; United States v. Becker, 569 F.2d 951, 961 (5th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978).\n \n \n 20\n The government presented evidence that in October, 1978, Donald Raulerson and Jose Pena agreed that Pena would assist Raulerson in his effort to increase his marijuana smuggling operations. Specifically, Raulerson gave Pena $500,000, and Pena agreed to meet with Enrique Coronado, Raulerson's South American supplier and arrange for 100,000 pounds of marijuana to be imported to the United States on a 200-foot freighter. On December 28, 1978, the freighter, BP25, came within seventy miles east of Marathon, Florida, where crewmen from three shrimp boats offloaded the marijuana into the smaller vessels.\n \n \n 21\n A government witness, Guy Brown, testified that appellants, Larry Masters, Wendell Cole, B.K. Taylor, and others participated in this four-day offloading operation of 100,000 pounds.\n \n \n 22\n Another government witness, Dewey Brown, testified that he received an airplane from Larry Masters, and they flew to Colombia, South America, to arrange a marijuana deal. While flying in Colombia, Dewey Brown and Larry Masters were unable to locate the air strip on which they were to land. As a result, they nearly exhausted all of their fuel. Dewey Brown and Larry Masters then decided to land the airplane and check the fuel. After landing near the town of Latacunga, Larry Masters sought \"to contact a Colombian in Barranquilla\" whose name was \"Enrique.\"\n \n \n 23\n Eventually, Larry Masters and Dewey Brown went to an air strip outside the town. At the airstrip, a Piper Navajo aircraft was refueled and loaded with marijuana. Larry Masters, Little John, Curtie, and Dewey Brown flew in the airplane to Fort Pierce, Florida, with Curtie piloting the airplane.\n \n \n 24\n Approximately fifteen to twenty minutes before landing, Larry Masters and Little John dropped marijuana from the airplane in the Continental United States. After the airplane landed, Larry Masters, Little John, and Dewey Brown met Donald Raulerson in the parking area. Soon thereafter, Brown, Little John, Raulerson, and Larry Masters went to Howard Masters's house. Upon arrival at Howard Masters's house, the men, along with several other people who were there, discussed the events of the day. Howard Masters paid Dewey Brown $1,000 for his Colombia, South America, trip.\n \n \n 25\n Our review of the government's evidence is limited to a determination as to whether a reasonable trier of fact could have found beyond a reasonable doubt that Howard Masters and Larry Masters conspired to import marijuana into the United States. United States v. Vera, 701 F.2d 1349, 1357 (11th Cir.1983). Examination of the government's evidence reveals that an agreement existed between two or more persons to import marijuana into the United States and that Larry Masters and Howard Masters knowingly and voluntarily joined and participated in this illegal venture. United States v. Vera, 701 F.2d 1349 (11th Cir.1983). The existence of the conspiracy to import marijuana is established by the circumstances surrounding: (1) Larry Masters's delivery of an airplane to Brown to be used to fly marijuana; (2) Larry Masters's trip, with Dewey Brown, to Colombia, South America; (3) Larry Masters's persistent attempts to contact Enrique while in Colombia; (4) Larry Masters's subsequent trip from Colombia to the United States on an aircraft loaded in his presence with marijuana; (5) Larry Masters's participation in throwing marijuana out of the airplane at specified locations in the United States; (6) Larry Masters's subsequent trip, along with Dewey Brown, Little John, and Donald Raulerson to Howard Masters's home where a discussion took place as to the events of the day; and (7) Howard Masters's payment of $1,000 to Dewey Brown for his trip to South America.\n \n \n 26\n Viewing this evidence in the light most favorable to the government, we conclude that a reasonable trier of fact could have found that an agreement to import marijuana into the United States existed, that Howard Masters and Larry Masters had knowledge of this objective, and that Howard Masters and Larry Masters voluntarily joined and participated in this illegal venture. United States v. Badolato, 701 F.2d 915 (11th Cir.1983); and Tamarago, 672 F.2d 887 (11th Cir.1982). Accordingly, we hold that the evidence is sufficient to support appellants' convictions.\n \n \n 27\n II. Attempted Importation.\n \n \n 28\n Larry Masters further contends that the evidence is insufficient to support his conviction of attempted importation of marijuana. Larry Masters argues that the evidence, at best, shows that he took an airplane ride to Colombia, South America. Viewing the evidence in the light most favorable to the government, we believe that a reasonable jury could have found that the evidence detailed above established Larry Masters's guilt beyond a reasonable doubt of attempted importation. See Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Bell, 678 F.2d 547 (5th Cir. Unit B) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1982).\n \n \n 29\n III. Inspection of Grand Jury Records.\n \n \n 30\n Appellants, Howard Masters, Larry Masters, and B.K. Taylor contend that their due process rights were violated because the district court denied their motion to inspect the grand jury minutes. Appellants argue that the prosecutor manipulated the grand jury process by presenting to the grand jury a pre-signed indictment. Moreover, Howard Masters and Larry Masters claim that the superseding indictment increased the charges against Larry Masters and charged Howard Masters because he exercised constitutionally protected rights.\n \n A. Pre-signed Indictment\n \n 31\n The United States Attorney signed the superseding indictment prior to its presentation to the grand jury. This, however, does not render the indictment null or void. United States v. Brown, 684 F.2d 841, 842 (11th Cir.1982). The United States Attorney's signature is not a certificate that the indictment is in proper form, nor is it an attestation of the grand jury's conduct. United States v. Cox, 342 F.2d 167, 171-72 (5th Cir.1965). Instead, the United States Attorney's signature evidences a recognition that the government attorney has exercised his discretion to permit the indictment to be brought, and demonstrates that he joins the grand jury in commencement of the criminal proceeding. See United States v. Levine, 457 F.2d 1186, 1189 (10th Cir.1972).\n \n \n 32\n Appellants have not shown, and we, therefore, are not convinced that appellants suffered any prejudice arising from the use of the presigned indictment. Accordingly, the presigned indictment in this case does not constitute a due process violation. See United States v. Brown, 684 F.2d 841 (11th Cir.1982).\n \n B. Superseding Indictment\n \n 33\n Appellants, Howard Masters and Larry Masters also assert that the government's submission of a superseding indictment to the grand jury was motivated by prosecutorial vindictiveness and, thus, demonstrates a due process violation sufficient to require dismissal of the indictment. Howard Masters argues that the prosecutor urged him to plead guilty to a less serious felony offense and, thereafter, promised that if he did, his sons would not be charged. Howard Masters refused to accept the alleged offer. While a prosecutor's offer, during plea bargaining, of adverse or lenient treatment for some person other than the accused might pose a greater danger of inducing a false guilty plea by skewing the assessment of the possible risks, that is not this case. Howard Masters entered a not guilty plea; he was not induced to enter a false guilty plea.\n \n \n 34\n Howard Masters and Larry Masters were properly charged under the relevant statutes. See Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978). A prosecutor may seek a superseding indictment at any time prior to a trial on the merits. United States v. Del Vecchio, 707 F.2d 1214, 1216 (11th Cir.1983) (citing United States v. Stricklin, 591 F.2d 1112 at 1115 n. 1 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979)).\n \n \n 35\n In a strikingly similar case, the prosecutor explicitly told the defendant that if he did not plead guilty and \"save the court the inconvenience and necessity of a trial,\" he would return to the grand jury and seek an indictment under a recidivist statute which would significantly increase the defendant's potential punishment. Bordenkircher v. Hayes, 434 U.S. 357, 358-59, 98 S.Ct. 663, 665-66, 54 L.Ed.2d 604 (1978). Like Howard Masters, the defendant in Bordenkircher refused to plead guilty, and the prosecutor obtained an indictment charging him under the recidivist statute. The parties in Bordenkircher agreed that the recidivist charge was justified by the evidence, that the prosecutor was in possession of this evidence when he sought the original indictment, and that the defendant's refusal to plead guilty to the original charge led to his indictment under the recidivist statute. Bordenkircher, 434 U.S. at 359, 98 S.Ct. at 665.\n \n \n 36\n The Bordenkircher Court stated that as long as the prosecutor has probable cause to believe that an accused has committed an offense defined by statute, the decision whether or not to prosecute, and if so, what charge to bring before the grand jury, rests in the prosecutor's discretion. The court then held that the course of conduct employed by the prosecutor, which presented the defendant with the alternatives of pleading guilty and foregoing trial or facing charges on which he was plainly subject to prosecution, did not violate the due process clause of the fourteenth amendment. Bordenkircher, 434 U.S. at 365, 98 S.Ct. at 669.\n \n The Bordenkircher Court observed:\n \n 37\n To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, see North Carolina v. Pearce, supra, [395 U.S. 711] at 738, 89 S.Ct. 2072 [at 2082], 23 L.Ed.2d 656 [ (1969) ] (opinion of Black, J.), and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.' Chaffin v. Stynchcombe, supra, [412 U.S. 17] at 32-33, n. 20, 93 S.Ct. 1977 [at 1985-1986 n. 20], 36 L.Ed.2d 714 [ (1973) ]. See United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 [ (1968) ]. But in the 'give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.\n \n \n 38\n Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 668 (emphasis added).\n \n \n 39\n More recently, in United States v. Goodwin, 457 U.S. 368, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982), the Supreme Court reaffirmed and explained its holding in Bordenkircher. In doing so, the Court explained that the Bordenkircher Court declared that \"by tolerating and encouraging the negotiation of pleas, this Court has accepted as constitutionally legitimate the simple reality that the prosecutor's interest at the bargaining table is to persuade the defendant to forego his constitutional right to stand trial.\" Goodwin, 457 U.S. at 378, 102 S.Ct. at 2491. The Court further explained that \"[t]he outcome in Bordenkircher was mandated by this Court's acceptance of plea negotiation as a legitimate process.\" Goodwin, 457 U.S. at 378, 102 S.Ct. at 2491.\n \n \n 40\n After examining the record before us for objective evidence of prosecutorial vindictiveness, we find none. It is undisputed that Larry Masters and Howard Masters were properly chargeable under the added counts of the superseding indictment, that the prosecutor was in possession of this evidence at the time of the original indictment, and that Howard Masters's refusal to plead guilty to the original charge led to his indictment. These facts do not give rise to a presumption of prosecutorial vindictiveness.1 Accordingly, we hold that in this case no showing of prosecutorial vindictiveness exists; therefore, no due process violation appears. Goodwin, 457 U.S. at 384, 102 S.Ct. at 2494.\n \n C. Grand Jury Records\n \n 41\n Larry Masters, Howard Masters, and B.K. Taylor argue that their due process rights were violated by the district court's refusal to allow inspection of the grand jury records. A defendant must show \"particularized need\" to justify infringement of the secrecy surrounding a grand jury. United States v. Tucker, 526 F.2d 279, 282 (5th Cir.1976). Appellants, however, contend that the prosecutor manipulated the grand jury process as shown by the fact that the prosecutor presented to the grand jury a presigned indictment. The presigned indictment bears no inscriptions or other signs of manipulation.\n \n \n 42\n We find that appellants' unsubstantiated allegations of grand jury manipulation do not satisfy the \"particularized need\" standard. United States v. Howard, 433 F.2d 1 (5th Cir.1970), cert. denied, 401 U.S. 918, 91 S.Ct. 900, 27 L.Ed.2d 819 (1971). In sum, we hold that the district court did not err in denying appellants' motion to inspect the grand jury records based on the government's submission of a presigned superceding indictment to the grand jury.\n \n \n 43\n IV. Count II of the Indictment.\n \n \n 44\n Appellants, Howard Masters and B.K. Taylor contend that Count II of the indictment should have been dismissed because it did not give a plain, concise, and definite statement of the essential facts constituting the offense charged. These appellants also contend that the indictment was too vague to satisfy their sixth amendment right to be informed of the government's accusations against them. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). To pass constitutional scrutiny, an indictment must be sufficiently specific to inform the defendant of the charge against him and to enable him to plead double jeopardy in any future prosecution for the same offense. See Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). An indictment satisfies these requirements as long as the language therein sets forth the essential elements of the crime. Hamling, 418 U.S. at 117, 94 S.Ct. at 2907. Furthermore, an indictment for conspiracy to commit a criminal offense is not required to be as specific as a substantive count. United States v. Ramos, 666 F.2d 469, 475 (11th Cir.1982).\n \n \n 45\n Count II of the superseding indictment states the elements of the offense charged against Howard Masters and B.K. Taylor--knowingly and willfully conspiring to import marijuana, a Schedule I controlled substance, into the United States from Colombia, South America, in violation of 21 U.S.C.A. Secs. 952(a) and 963 (West 1981).2 The indictment expressly identified appellants' co-conspirators and the controlled substance involved. See United States v. Ramos, 666 F.2d at 474. The indictment also identified the time span of the conspiracy: from some unknown time prior to October 1, 1977, until the date of the filing of the original indictment (July 31, 1981). United States v. Marable, 578 F.2d 151, 154 (5th Cir.1978). Moreover, the indictment described the locale of the alleged conspiracy; the government alleged that the criminal activity took place in St. Lucie, Dade, and Monroe Counties, within the Southern District of Florida, and elsewhere. Finally, the indictment specifies the statutes (21 U.S.C.A. Secs. 952 and 963) allegedly violated.\n \n \n 46\n Count II is sufficiently specific to inform appellants of the charges against them and to enable them to plead double jeopardy in any future prosecutions for the same offense. See Hamling v. United States, 418 U.S. at 117, 94 S.Ct. at 2907. The district court did not err in denying appellants' motion to dismiss Count II of the indictment.\n \n \n 47\n V. Appellants' Request For a Bill of Particulars.\n \n \n 48\n Appellants, Howard Masters and B.K. Taylor, contend that the district court abused its discretion in denying their motions for a bill of particulars under Federal Rule of Criminal Procedure 7(f).3 On August 19, 1981, appellants, along with other defendants, filed a motion for a bill of particulars. Subsequently, B.K. Taylor filed a motion to adopt the motions of the other defendants. The district court denied appellants' main motion for a bill of particulars. Thereafter, the district court granted in part an amendment to the motion for a bill of particulars. The district court determined that the government need only provide the names of all known co-conspirators, indicted or unindicted, and the approximate date when each defendant entered and, \"if applicable,\" left the alleged conspiracy. On appeal, appellants argue that the district court abused its discretion in not granting their motion for a bill of particulars as amended.\n \n \n 49\n It is well settled law that \"where an indictment fails to set forth specific facts in support of requisite elements of the charged offense, and the information is essential to the defense, failure to grant a request for a bill of particulars may constitute reversible error.\" United States v. Crippen, 579 F.2d 340, 347 (5th Cir.1978). Moreover, a district court is vested with broad discretion in deciding whether a bill of particulars should be granted. United States v. Colson, 662 F.2d 1389, 1391 (11th Cir.1981); United States v. Wilson, 647 F.2d 534, 536 (5th Cir.1981); Roberson v. United States, 249 F.2d 737, 739 (5th Cir.1957). We will reverse a district court's refusal to grant a request for a bill of particulars only if it can be shown that the defendant was actually surprised at trial and thereby incurred prejudice to his substantial rights. See United States v. Williams, 679 F.2d 504, 510 (5th Cir.1982) (citing United States v. Colson, 662 F.2d 1389, 1391 (11th Cir.1981)).\n \n \n 50\n The purpose of a bill of particulars is to inform the defendant of the charge against him with sufficient precision to allow him to prepare his defense, to minimize surprise at trial, and to enable him to plead double jeopardy in the event of a later prosecution for the same offense. United States v. Cantu, 557 F.2d 1173, 1178 (5th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1236, 55 L.Ed.2d 763 (1978); United States v. Mackey, 551 F.2d 967, 970 (5th Cir.1977).\n \n \n 51\n The superseding indictment in this case tracked the language of the statutes involved and adequately informed appellants of the charges pending against them. See Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545 (1927). Furthermore, the evidence presented in this case consisted of testimony by witnesses and federal agents of conversations and activities in which appellants participated. In United States v. Cantu, 557 F.2d 1173 (5th Cir.1977), cert. denied, 434 U.S. 1063, 98 S.Ct. 1236, 55 L.Ed.2d 763 (1978), this court's predecessor stated that where the evidence consists mainly of testimony by witnesses of conversations in which a defendant participated, of activity in a defendant's place of business which he witnessed, and of arrests in the business parking lot which he also witnessed, the defendant \"could hardly have been surprised by the government's proof at trial.\" Cantu, 557 F.2d at 1178 (quoting United States v. Pena, 542 F.2d 292, 293, 294 (5th Cir.1976)). Accordingly, because the evidence presented in this case consisted of testimony of conversations and activities in which appellants, Howard Masters and B.K. Taylor, participated, appellants were not surprised by the testimony of witnesses who were present during the conversations and who were joint participants in the illegal activity. In any event, appellants have not shown that the government's failure to provide a bill of particulars resulted in surprise or prejudice at trial. Finding no abuse of discretion, we hold that the district court's refusal to grant the requested bill of particulars, as amended, does not constitute reversible error.\n \n \n 52\n VI. Sufficiency of the Evidence--Count VI.\n \n \n 53\n Appellant, Cole, contends that the evidence was insufficient to support a jury finding that the substance charged in Count VI was marijuana. In Count VI of the superseding indictment, the grand jury charged Wendell Cole with knowingly and intentionally possessing marijuana with intent to distribute in violation of 21 U.S.C.A. Sec. 841(a)(1) (West 1981) and 18 U.S.C.A. Sec. 2 (West 1969).4 The jury found Cole guilty as charged. The nature of a narcotic drug may be established by circumstantial evidence, as long as the drug's identity is established beyond a reasonable doubt. United States v. Quesada, 512 F.2d 1043, 1045 (5th Cir.), cert. denied, 423 U.S. 946, 96 S.Ct. 356, 46 L.Ed.2d 277 (1975).\n \n \n 54\n The government's evidence demonstrated that a house was acquired for the purpose of storing marijuana imported from outside the United States prior to distribution in the United States. At trial, Stefanides testified that Donald Raulerson rented a house for the purpose of storing marijuana imported from outside the United States. He further testified that on three or four occasions, he and Wendell Cole loaded bales of marijuana from the house into a vehicle. Stefanides stated that, \"Mr. Cole was one of the drivers transporting the marijuana out from the rented house to whatever destination.\" Stefanides admitted that he had handled bales of marijuana approximately seventy times and that he would start out carrying one bale of marijuana to a designated point, drop it off there, return approximately two days later, pick up the money, and carry the money to Donald Raulerson. In July, 1978, law enforcement authorities apprehended Stefanides with twenty-five bales of marijuana. Stefanides admitted that he possessed the marijuana and pleaded guilty. Stefanides also testified that he had a discussion with Donald Raulerson \"concerning an operation of moving approximately 100 bales of marijuana from South Beach in Fort Pierce to Donald Raulerson's house in Fort Pierce.\" In sum, Stefanides, an admitted drug smuggler, testified that the substance in the bales and the substance transported by Wendell Cole was marijuana.\n \n \n 55\n We hold that the jury could have found beyond a reasonable doubt that the testimony of Stefanides proved that the substance was marijuana. We, therefore, affirm the district court's ruling that the evidence is sufficient to support Cole's conviction under Count VI of the superceding indictment.\n \n \n 56\n VII. Appellants' Motions for Severance.\n \n \n 57\n Appellants, Larry Masters, Howard Masters, and B.K. Taylor contend that the district court abused its discretion in denying their motion for a severance under Federal Rule of Criminal Procedure 14.5 Generally, co-conspirators should be tried jointly. United States v. Astling, 733 F.2d 1446, 1454 (11th Cir.1984). To demonstrate an abuse of discretion, appellants must establish that they \"suffered compelling prejudice against which the trial court was unable to afford protection.\" United States v. Russell, 703 F.2d 1243, 1247 (11th Cir.1983) (quoting United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir. Unit B 1981)). Rule 14 discusses prejudicial joinder and requires a district court to weigh the prejudice inherent in a joint trial against the interest of judicial economy, and thereafter, to sever defendants or charges as the needs of justice dictate. This balancing process is wholly committed to the sound discretion of the district court, and this court will not substitute its judgment for that of the district court absent a showing that the district court has abused its discretion. Schaffer v. United States, 362 U.S. 511, 80 S.Ct. 945, 4 L.Ed.2d 921 (1960); United States v. McLaurin, 557 F.2d 1064, 1075 (5th Cir.1977), cert. denied, 434 U.S. 1020, 98 S.Ct. 743, 54 L.Ed.2d 767 (1978). The general test for determining whether a defendant has met the burden of showing prejudice was stated by this court's predecessor as:\n \n \n 58\n [W]hether under all the circumstances of the particular case, as a practical matter, it is within the capacity of the jurors to follow the court's admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant's own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.\n \n \n 59\n Tillman v. United States, 406 F.2d 930, 935 (5th Cir.), vacated in part, 395 U.S. 830, 89 S.Ct. 2143, 23 L.Ed.2d 742 (1969), quoted in United States v. McLaurin, 557 F.2d 1064, 1075 (5th Cir.1977).\n \n \n 60\n Based on this general test, we find no abuse of discretion in the district court's denial of appellants' motion for a severance. The indictment outlines an alleged pattern of related and concerted activity both in the conspiratorial allegations (Counts II and XIV) and the related substantive enterprise, importation, distribution, and possession allegations. In light of these circumstances, we cannot say the district court acted unreasonably in considering the judicial economy and expense that would be saved if the defendants were tried jointly. Furthermore, the record reveals that the witnesses clearly identified the defendants about whom they testified. The record also reveals that the jury acquitted some defendants on various counts and found them guilty on others. These facts demonstrate that the jury was able to sort out the evidence relevant to each defendant and render a verdict based solely upon that defendant's acts, statements, and conduct. Accordingly, we reject appellants' contention that the district court abused its discretion in denying appellants' motion for severance.\n \n \n 61\n VIII. B.K. Taylor--Fair Trial.\n \n \n 62\n Appellant, B.K. Taylor, contends that he was denied his right to a fair trial and due process of law when the government allowed to go uncorrected testimony by Jose Pena, Jorge Pena, and Guy Brown that they had not been involved in any criminal activity after they entered into their plea agreements. It is their contention that the government knew, or should have known, that this testimony was false. Moreover, B.K. Taylor contends that the district court erred in denying his motion to compel additional discovery on Penas' and Brown's involvement in subsequent criminal activity. It is well established that a government lawyer \"has the responsibility and duty to correct what he knows to be false and elicit the truth.\" Napue v. Illinois, 360 U.S. 264, 270, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959) (citations omitted). Prosecutorial misconduct, however, does not always render a subsequent conviction illegal. An appellate court will overturn a conviction resting, in part, upon the knowing use of false testimony \"if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.\" United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).\n \n \n 63\n When a government lawyer elicits false testimony that goes to a witness's credibility, we will consider it sufficiently material to warrant a new trial \"only when the 'estimate of the truthfulness and reliability of [the] given witness may well be determinative of guilt or innocence.' \" United States v. Anderson, 574 F.2d 1347, 1356 (5th Cir.1978) (quoting Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 765, 31 L.Ed.2d 104 (1972)). In this case, Taylor has failed to submit legally sufficient evidence that the government elicited false testimony, or knew or should have known that government witnesses Jose Pena, Jorge Pena, and Guy Brown gave false testimony. Taylor claims that the government was clearly put on notice that its witnesses were involved in criminal activities because appellant's motion to compel additional discovery \"clearly framed that issue.\" Examination of Taylor's motion to compel additional discovery does not support this contention. The motion reveals that \"four Latin males were apprehended by state authorities of St. Lucie County and Indian River County, Florida.\" The motion further states that \"the incident had nothing whatsoever to do with the ... instant prosecution.\" In paragraph 2 of Taylor's motion to compel additional discovery, he states:\n \n \n 64\n Limited information indicates that the incident surrounded a drug transaction by the Penas and possibly Guy Brown, which would have antidated the indictment herein, and very possibly been after the entry of the negotiated pleas whereby these individuals became cooperating government witnesses. [Emphasis added.]\n \n \n 65\n Taylor, however, does not venture to reveal to the court the source of this \"limited information\"; he snatches out of mid-air speculative and conjectural possibilities. For example, appellant states that \"possibly Guy Brown\" was involved in a drug transaction and that this incident \"very possibly\" could have occurred after the entry of the negotiated pleas. These bald allegations, in Taylor's motion, are not sufficient to impute knowledge to the government that its witnesses were actually involved in any subsequent criminal activity. Taylor has not shown that any of the government witnesses testified falsely; nor has he shown that the government's failure to correct the witnesses' alleged misstatements affected the jury's verdict. See United States v. Agurs, 427 U.S. 97, 103-04, 96 S.Ct. 2392, 2397-98, 49 L.Ed.2d 342 (1976). We hold that the district court did not abuse its discretion or err in denying appellant, Taylor's, motion to compel additional discovery. We further hold that neither the government's conduct nor the district court's denial of appellant's motion deprived appellant of a fair trial or due process of law.\n \n \n 66\n IX. Wendell Cole--Judgment of Acquittal.\n \n \n 67\n Appellant, Wendell Cole, contends that the district court erred in denying his motion for judgment of acquittal because the government did not prove one conspiracy as alleged in the indictment, but instead, proved the existence of multiple conspiracies. Thus, Cole contends that an impermissible variance exists between the charge and the proof at trial. Cole's challenge to the denial of his motion for judgment of acquittal is no more than a challenge to the sufficiency of the evidence. See United States v. Gulledge, 739 F.2d 582 (11th Cir.1984).\n \n \n 68\n To establish a conspiracy, the government must prove an agreement or common purpose to violate the law. United States v. Watson, 669 F.2d 1374, 1379 (11th Cir.1982); United States v. Michel, 588 F.2d 986, 994 (5th Cir.), cert. denied, 444 U.S. 825, 100 S.Ct. 47, 62 L.Ed.2d 32 (1979).6 While each individual need not be privy to all the details of the conspiracy, or be aware of all the other conspirators, or participate in every stage of the conspiracy, each defendant must have joined the conspiracy intentionally. United States v. Becker, 569 F.2d 951, 961 (5th Cir.), cert. denied, 439 U.S. 865, 99 S.Ct. 188, 58 L.Ed.2d 174 (1978). In reviewing this challenge to the sufficiency of the evidence, we must determine whether a jury could find beyond a reasonable doubt that a conspiracy existed, that Cole knew of it, and that he intentionally joined it. United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.1979) (en banc).\n \n \n 69\n As early as 1946, the Supreme Court held that where the evidence at trial proves the existence of multiple, independent conspiracies and the indictment alleges a single conspiracy, reversal of the defendant's conspiracy conviction is warranted, if the defendant's substantial rights have been injured by the variance. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). In determining whether a single conspiracy existed, we must ask, \"what is the nature of the agreement. If there is one overall agreement among the various parties to perform different functions in order to carry out the objectives of the conspiracy, then it is one conspiracy.\" United States v. Perez, 489 F.2d 51, 62 (5th Cir.1973), cert. denied, 417 U.S. 945, 94 S.Ct. 3067, 41 L.Ed.2d 664 (1974).\n \n \n 70\n In determining whether a reasonable trier of fact could have found beyond a reasonable doubt that a single conspiracy existed, we consider three factors: (1) whether a common goal existed; (2) the nature of the criminal scheme; and (3) the overlapping of the participants in the various dealings of the conspiracy. United States v. Brito, 721 F.2d 743, 747 (11th Cir.1983) (citing United States v. Watson, 669 F.2d 1374, 1379-80 (11th Cir.1982)). This court will not reverse a jury's finding that a single conspiracy existed unless the evidence, viewed in the light most favorable to the government, could not permit reasonable jurors to have found, beyond a reasonable doubt, that a single conspiracy existed. United States v. Bell, 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff'd on other grounds, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Examination of the evidence in light of the factors listed above reveals that each factor is amply satisfied. An abundance of evidence supports the jury's determination that a single conspiracy existed. The common goal of the conspiracy was the importation and distribution of marijuana into the United States. See United States v. Watson, 669 F.2d at 1380. The evidence also reveals that the conspiracy was manifested in a single, ongoing operation.\n \n \n 71\n The evidence establishes that Donald Raulerson headed this illegal venture. The conspirators accomplished their common goal by purchasing large loads of marijuana in Colombia, South America, transporting them to the United States aboard vessels or airplanes, and delivering the marijuana to various purchasers. Notwithstanding the fact that the identities of those participating in the offloading and onloading of the boats, airplanes, trucks, ships, and houses occasionally differed from load-to-load, the evidence clearly indicates that each, including appellant, Cole, knowingly, intentionally, and voluntarily participated in the illegal enterprise.\n \n \n 72\n Finally, we detect an overlapping of the participants in the various dealings of the conspiracy.\n \n \n 73\n The importation schemes and participants in this illegal venture varied from load-to-load. Howard Masters served as a direct partner with Donald Raulerson in the importation and distribution of marijuana in the Marathon operation. Larry Masters helped off-load marijuana imported into the United States during the Marathon operation. He helped weigh the marijuana prior to its sale and drove a truck loaded with marijuana away from the offload site. As the speedboats came in, B.K. Taylor directed the offloading crew, assisted in the offloading of the marijuana, and ordered the crew to \"get your eyes adjusted to the dark; stay under cover.\" Taylor hung a light out on the dock for the boats coming in at night and went to Naples, Florida, to assist in the offloading of 50,000 pounds of marijuana from a \"bunch of speedboats\" to the back porch of a house. Additionally, Wendell Cole was an offloader at the Marathon site; he drove a load of marijuana to Naples, Florida; and, thereafter, he returned to Marathon, Florida, to help load other vehicles.\n \n \n 74\n During the offloading and weighing of the marijuana in the Marathon operation, Stefanides went to a motel in Marathon, Florida, where Donald Raulerson, Howard Masters, and Billy Morris were staying. At that time, Raulerson told Stefanides that once they got the load into the house, his main concern was to disburse the load as quickly as possible.\n \n \n 75\n Howard Masters employed small airplanes to fly marijuana from South America into south Florida. He directed an attempted importation which involved Dewey Brown and his son, Larry Masters. Howard Masters paid the pilots for their work and purchased airplanes for the drug smuggling trips. On one of these trips, Larry Masters had trouble with an airplane in South America. After this trouble, he went looking for \"Enrique,\" who was Raulerson's South American marijuana supplier. After acquiring the marijuana to be smuggled into Florida and a suitable airplane, Larry Masters aided others in throwing marijuana out of the airplane at designated locations within the United States.\n \n \n 76\n B.K. Taylor offloaded marijuana-filled airplanes on many occasions. Taylor also traveled to Colombia, South America, with $1 million to purchase marijuana. Howard Masters and Donald Raulerson gave most of the instructions and supplied the front money to finance the drug smuggling operations. United States v. Spradlen, 662 F.2d 724, 727 (11th Cir.1981). Considering the facts in their totality, we conclude that a reasonable trier of fact could have found beyond a reasonable doubt, the existence of a single conspiracy whose goal was achieved through various drug smuggling ventures.\n \n \n 77\n Even if the evidence did show that multiple conspiracies existed, we may not reverse Cole's conviction absent a showing that the variance between the indictment and the evidence adversely affected his substantial rights. United States v. Brito, 721 F.2d 743, 748 (11th Cir.1983); United States v. Solomon, 686 F.2d 863, 870 (11th Cir.1982). Cole fails to make this showing. Cole does not articulate any specific prejudice; he merely argues that his conviction should be reversed because \"it is highly probable that the jury was confused by testimony concerning various combinations of defendants and boat loads, plane loads and millions of dollars.\" Succinctly stated, Cole argues that his trial with the other defendants, exposed him to the potential danger that the jury would not consider each defendant's guilt individually based on the evidence. We agree with Cole's assertion that this case involved a number of defendants. We, however, do not agree that the jury was confused.\n \n \n 78\n Accordingly, we hold that Cole has not shown any prejudicial variance between the evidence and the indictment.\n \n \n 79\n X. Admission of Tape Recordings.\n \n \n 80\n Appellants, Wendell Cole and Larry Masters, contend that the district court abused its discretion in allowing videotape recordings into evidence. Specifically, Larry Masters asserts that portions of videotape 61 which were presented to the jury were not admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence.7 Larry Masters also contends that the admitted portions of videotape 61 which were presented to the jury deprived him of his right to a fair trial and his right to confront witnesses against him. In addition, Wendell Cole argues that the district court erred in admitting into evidence the videotape recordings.\n \n \n 81\n It is the unique function of the district court to determine the admissibility of evidence; admission of evidence is committed to the sound discretion of the trial court. United States v. Duff, 707 F.2d 1315, 1318 (11th Cir.1983). Accordingly, the decision of a district court to admit relevant evidence will not be disturbed by this court absent an abuse of discretion. United States v. Russell, 703 F.2d 1243 (11th Cir.1983). In United States v. Biggins, 551 F.2d 64 (5th Cir.1977), the former Fifth Circuit stated that the trial court has broad discretion in determining whether to allow a recording to be played before the jury.\n \n \n 82\n The videotaped recordings consisted of conversations between various co-conspirators concerning drug smuggling and money laundering activities. The statements about money laundering constitute evidence inextricably intertwined with the government's evidence regarding the main narcotics transaction.\n \n \n 83\n The district court found that this evidence was admissible because it was probative of the defendant's involvement in narcotics transactions. See United States v. Wertz, 625 F.2d 1128 (4th Cir.), cert. denied, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 136 (1980); United States v. Schwartz, 535 F.2d 160 (2d Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 581 (1977); United States v. Magnano, 543 F.2d 431 (2d Cir.), cert. denied, 429 U.S. 1091, 97 S.Ct. 1100, 51 L.Ed.2d 536 (1977). Accordingly, admission of the videotape into evidence did not violate Rule 404(b) of the Federal Rules of Evidence.8 See United States v. Killian, 639 F.2d 206, 211 (5th Cir. Unit A 1981) (citing United States v. Aleman, 592 F.2d 881, 885 (5th Cir.1979)).\n \n \n 84\n Cole contends that the prejudice resulting from the admission of the videotapes far outweighed the probative value of the evidence. In support of this contention, Cole cites Rule 403 of the Federal Rules of Evidence.9 This rule gives the district court discretion in excluding otherwise admissible evidence under specified circumstances. Rule 403, however, should be applied sparingly. United States v. McRae, 593 F.2d 700, 707 (5th Cir.1979). We are persuaded that the district court struck the proper balance between the probative value of the tapes and the prejudice resulting to appellants. We reject appellants' contentions to the contrary. We find that the statements made concerning Larry Masters were made during the course of the conspiracy and in furtherance of the conspiracy. Correspondingly, we hold that the portions of videotape 61 which were presented to the jury were admissible under Rule 801(d)(2)(E) of the Federal Rules of Evidence. The conversations in question took place on October 28, 1980, and involved discussions on how to launder money obtained as a result of the marijuana conspiracy. Successful laundering was essential to the ongoing conspiracy. Hence, the conversations in this case, unlike those in Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949), were made during the conspiracy and in furtherance thereof.\n \n \n 85\n Finally, we find no merit in Larry Masters's contention that the admission of the video tapes and statements made thereon by his co-conspirators violated the confrontation clause of the sixth amendment. See Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Finding no merit in any of appellants' contentions, we hold that the district court did not abuse its discretion in admitting the relevant portions of the videotape recordings into evidence.\n \n \n 86\n XI. Prosecutorial Misconduct.\n \n \n 87\n Appellants, B.K. Taylor, Howard Masters, and Larry Masters, contend that the opening statement and closing arguments of the prosecutor in this case were improper. Appellants further contend that the prosecutor grossly misstated the facts during his closing argument, and therefore, their convictions should be reversed and the case should be remanded for a new trial. They claim that the prosecutor's prejudicial comments deprived them of a fair trial.\n \n \n 88\n When determining whether a prosecutor's comments warrant the granting of a new trial, we consider: (1) whether the remarks were improper, and (2) whether they prejudicially affected substantive rights of the appellants. United States v. Vera, 701 F.2d 1349, 1361 (11th Cir.1983). The legal metes and bounds of a prosecutor's argument are defined by the evidence before the jury. Thus, a prosecutor must limit his comments to admissible evidence. See United States v. Phillips, 664 F.2d 971, 1030 (5th Cir.), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Ed.2d 1354 (1982). On review, we determine whether the prosecutor's remarks were improper, and if so, whether they prejudicially affected any substantive right of appellants. United States v. Kopituk, 690 F.2d 1289, 1341 (11th Cir.1982).\n \n A. Opening Statement\n \n 89\n Appellants, Howard Masters, Larry Masters, and B.K. Taylor, assert that the prosecutor usurped the authority of the court by discussing the application of evidence to the law and by making erroneous statements of the law during his opening statement. When the Assistant United States Attorney presented the opening statement on behalf of the government, the following colloquy ensued:\n \n \n 90\n [AUSA]: But you will also need to keep in mind that all of the defendants are charged together with what is called a conspiracy. A conspiracy is simply an agreement to do something which is against the law.\n \n \n 91\n In this case, to import marijuana, if you find in this case that there was a conspiracy and if you find in this case that these particular defendants or various other defendants participated in this conspiracy, then it is appropriate to consider all of the acts, all of the co-conspirators acts against and were done by each of the defendants.\n \n \n 92\n [Defense lawyer]: Your Honor, I object to that. I think that is an instruction on the law that the court can give the jury. That is not appropriate opening statement as to what the government is going to show in this case.\n \n \n 93\n The Court: I will sustain as to that. I will instruct the jury as to the law of conspiracy and they will follow that instruction, of course, as to the principle.\n \n \n 94\n Later, the district court properly instructed the jury on the law of conspiracy. While the prosecutor's explanation of the law of conspiracy may have been improper and substantively faulty, we find that these comments did not prejudice or adversely affect any substantive rights of the appellants. Accordingly, we hold that the district court properly denied appellants motion for mistrial on this ground.\n \n \n 95\n Next, appellants contend that the prosecutor made improper remarks about the defendants, as follows:\n \n \n 96\n [AUSA]: There are three other people that are listed in this indictment that are actually going to be appearing here as witnesses. They are going to testify about what they did and about what other people did in the organization.\n \n \n 97\n And the people you may not like are a lot of people that you may not want to have in your living room. But they were there and they were witnesses and it would be nice to have the Pope here--\n \n \n 98\n [Defense lawyer]: Objection to that argument. It is not opening statement.\n \n \n 99\n [Defense lawyer]: Objection to this argument.\n \n \n 100\n The Court: Sustained.\n \n \n 101\n The prosecutor's statements, in the context of the entire trial, are not sufficiently prejudicial to warrant reversal. We, therefore, hold that the district court did not abuse its discretion in denying appellants' motions for a new trial.\n \n \n 102\n Appellants further contend that the prosecutor misrepresented the character and purpose of the video tape recording evidence. The opening statement proceeded as follows:\n \n \n 103\n [AUSA]: You will see from the tapes the problem that is had and the reason for this service. Drug money often, almost always, is in small denominations of tens and twenties. Often times the amount of money involved is a million dollars. Sometimes it is half of that. But a million dollars in ten dollars bills consists of 100,000 ten dollar bills and occupies a space of three large suitcases.\n \n \n 104\n And it generally takes six to eight hours simply to count.\n \n \n 105\n [Defense lawyer]: I object on the grounds that it is not a representation of what the evidence is going to show in the case. This is counsel's argument and this is the third time he has\n \n \n 106\n The Court: Sustained.\n \n \n 107\n [Defense lawyer]: And counsel should be admonished to proceed to opening statement as to what he intends to show.\n \n \n 108\n The Court: Sustained. You are to state what you hope the evidence will show.\n \n \n 109\n While the prosecutor's comments were improper, we conclude that they were not sufficiently prejudicial to warrant the granting of a new trial. We hold that the district court did not abuse its discretion in denying appellants' motion for a new trial on this ground.\n \n \n 110\n During the prosecutor's opening argument, the following exchange took place:\n \n \n 111\n [AUSA]: ... As I pointed out, it is very straightforward, but due to the number of defendants, it is going to take that period of time in order that you can hear about them. We are sorry for that. It is a very important case for the government.\n \n \n 112\n [Defense lawyer]: Objection.\n \n \n 113\n [Defense lawyer]: Objection.\n \n \n 114\n The Court: Sustained. There is no consideration as to whether the case is important or not important. That is not an issue in this case.\n \n \n 115\n [Defense lawyer]: Your Honor. I object to the reference that it will be long and boring because if the government did not want it to be long and boring, they did not have to bring in all of the defendants.\n \n \n 116\n The Court: I will overrule as to that. But there should be no reference as to whether it is an important case or not. That is not an issue at all. The jury will disregard that.\n \n \n 117\n Again, the prosecutor's comments were improper. Nonetheless, these comments did not prejudicially affect any of the appellants' substantive rights. See United States v. Dorr, 636 F.2d 117, 120 (5th Cir.1981); United States v. Garza, 608 F.2d 659, 663 (5th Cir.1979). The court's instruction to the jury immediately following defense counsel's objection to the comments cured any error that may have occurred as a result of the comments. Correspondingly, we hold that any error that may have resulted from the prosecutor's comments as to the importance of the case was harmless. United States v. Bright, 630 F.2d 804, 828-29 (5th Cir.1980).\n \n B. Closing Argument\n \n 118\n Appellants contend that the prosecutor should not have made reference to the \"money laundering\" aspects of the case. After the court instructed counsel for both sides not to pursue the issue of \"money laundering\" because this offense was not charged against appellants, counsel for one or more of the defendants used the term during cross-examination. Sometime thereafter, defense counsel objected to the Assistant United States Attorney's use of the term during closing argument. The following exchange ensued:\n \n \n 119\n [AUSA]: I want to make it real clear about the money laundering. I intend to use that term because it was utilized in this trial by Mr. Maddox's lawyer. And we all thought about it. And we all talked about it. And we kept it out and then Your Honor has allowed them to get into it on cross-examination. Now, it is in evidence and I am entitled to discuss it.\n \n \n 120\n The Court: I think that is correct. I, of course, will charge the jury that they are on trial only for those offenses that are set forth in the indictment and money laundering is not set forth in the indictment to be considered by the jury.\n \n \n 121\n [Defense lawyer]: Will you say that? That money laundering is not a part of this case?\n \n \n 122\n The Court: I will tell them that.\n \n \n 123\n After the jury returned and during the prosecutor's closing argument, the court instructed the jury:\n \n \n 124\n The Court: Let me give you one further instruction. Possession of cash and the exchange of such cash for cashier's checks are items in evidence that you may consider but money laundering as such is not an offense charged in this indictment and other matters before you on trial today. And, therefore, you may not consider that element itself separately as activity in the course of your deliberations.\n \n \n 125\n The prosecutor's mention of the term \"money laundering\" can fairly be described as nothing more than a response to defense counsel's use of the term on cross-examination. Assuming that the prosecutor's reference to \"money laundering\" was improper, it was an isolated instance which was cured by a strong cautionary instruction. See United States v. Nickerson, 669 F.2d 1016, 1020 (5th Cir. Unit B 1982) (citing United States v. Lichenstein, 610 F.2d 1272 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980)). The record reveals that the district court issued a prompt and strong curative instruction to the jury. The district court properly denied appellants' motion for a mistrial.\n \n C. Other Claims of Misconduct\n \n 126\n We have examined appellants' arguments that prosecutorial misconduct so permeated the entire trial that appellants were denied their right to a fair trial, that reversible prosecutorial misconduct occurred during rebuttal, that the prosecutor vouched for the credibility of government witnesses, and that the prosecutor personally attacked the motivation and integrity of defense counsel. Finding no reversible error, we affirm the district court on each of these issues.\n \n \n 127\n We agree with appellants that the prosecutor's gratuitous remark that he believed the testimony of Guy Brown was improper. We, however, are not compelled to reverse appellants' convictions because the district court thoroughly and carefully instructed the jury on how to treat the prosecutor's improper remarks, thereby curing any prejudice. See Gradsky v. United States, 373 F.2d 706, 711 (5th Cir.1967). Hanley v. United States, 416 F.2d 1160, 1166 (5th Cir.1969), cert. denied, 397 U.S. 910, 90 S.Ct. 908, 25 L.Ed.2d 91 (1970). In sum, we find that the prosecutor overstepped the bounds of proper argument, but the district court's instructions purged the case of any and all prejudice. We have examined appellants' other contentions concerning the prosecutor's conduct. Each of these contentions is meritless. Accordingly, the district court's ruling on appellants' motion for a new trial is affirmed.\n \n \n 128\n XII. Appellants Challenge to the Makeup of the Grand Jury.\n \n \n 129\n Appellants Larry Masters and B.K. Taylor contend that the district court erred in denying their challenges to the composition of the grand jury which returned the indictment. Appellants have not shown, and the record does not reveal, that the district court committed any reversible error. Accordingly, we hold that the district court did not err in denying appellants' motion to dismiss on this ground.\n \n Conclusion\n \n 130\n After a thorough review of the record and briefs in this case, we hold: (1) that sufficient evidence exists to convict appellants Howard and Larry Masters of conspiracy to import marijuana; (2) that sufficient evidence exists to convict appellant Larry Masters of attempted importation of marijuana; (3) that the district court did not err in denying appellants' motion to inspect the grand jury records; (4) that the superseding indictment which increased charges against Larry Masters and added Howard Masters did not violate any constitutional rights of appellants; (5) that the district court did not err in denying appellant Howard Masters and B.K. Taylor's motion to dismiss Count II of the indictment; (6) that the district court properly denied appellants' motion for a bill of particulars; (7) that sufficient evidence exists from which a reasonable jury could have found beyond a reasonable doubt that the substance charged in Count VI of the indictment was marijuana; (8) that the district court properly denied appellant Cole's request for a judgment of acquittal on the theory of multiple conspiracies; (9) that appellant B.K. Taylor was not deprived of due process of law or his right to a fair trial; (10) that the district court did not err in denying appellants' motions for severance; (11) that the district court did not abuse its discretion when it admitted into evidence portions of the video tape recordings; (12) that the district court correctly concluded that appellants were not entitled to a mistrial based on prosecutorial misconduct; and (13) that appellant Taylor's challenge to the makeup of the grand jury is without merit.\n \n \n 131\n Accordingly, the judgments of the district court are affirmed.\n \n \n 132\n AFFIRMED.\n \n \n \n *\n Honorable James H. Hancock, U.S. District Judge for the Northern District of Alabama, sitting by designation\n \n \n 1\n We, however, do not foreclose the possibility that in a proper case a defendant may prove through objective evidence an improper prosecutorial motive\n \n \n 2\n Title 21 U.S.C.A. Sec. 952(a) provides:\n (a) It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter, or any narcotic drug in schedule III, IV, or V of subchapter I of this chapter....\n Title 21 U.S.C.A. Sec. 963 provides:\n Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.\n \n \n 3\n Rule 7(f) of the Federal Rules of Criminal Procedure provides:\n (f) Bill of Particulars. The court may direct the filing of a bill of particulars. A motion for a bill of particulars may be made before arraignment or within ten days after arraignment or at such later time as the court may permit. A bill of particulars may be amended at any time subject to such conditions as justice requires.\n \n \n 4\n 21 U.S.C.A. Sec. 841(a)(1) (West 1981) provides in pertinent part:\n (a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--\n (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; ...\n (2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.\n 18 U.S.C.A. Sec. 2 (West 1969) states:\n (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.\n (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.\n \n \n 5\n Rule 14 of the Federal Rules of Criminal Procedure states:\n Rule 14. Relief from Prejudicial Joinder\n If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the government to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial.\n \n \n 6\n In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981\n \n \n 7\n Rule 801(d)(2)(E) of the Federal Rules of Evidence provides:\n Rule 801. Definitions\n ....\n (d) Statements which are not hearsay. A statement is not hearsay if--\n ....\n (2) Admission by party-opponent. The statement is offered against a party and is .... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.\n \n \n 8\n Rule 404(b) of the Federal Rules of Evidence provides:\n Rule 404. Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes\n ....\n (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\n \n \n 9\n Rule 403 of the Federal Rules of Evidence provides:\n Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.\n \n \n ", "ocr": false, "opinion_id": 448239 } ]
Eleventh Circuit
Court of Appeals for the Eleventh Circuit
F
USA, Federal
118,157
Breyer, Parts I, Rehnquist, Stevens
1997-12-15
false
general-electric-co-v-joiner
Joiner
General Electric Co. v. Joiner
GENERAL ELECTRIC CO. Et Al. v. JOINER Et Ux.
Steven R. Kuney argued the cause for petitioners. With him on the briefs were John G. Kester, David H. Flint, Alexander J. Simmons, Jr., Henry W. Ewalt, and Gerard H. Davidson, Jr., Deputy Solicitor General Wallace argued cause the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Edward C. DuMont, and John P. SchnitJcer., Michael H. Gottesman argued the cause for respondents. With him on the brief were Kenneth J. Chesehro, David L. Shapiro, and Michael J. Warshauer*
null
null
null
null
null
null
null
Argued October 14, 1997
null
null
2,366
Published
null
<parties id="b312-4"> GENERAL ELECTRIC CO. et al. <em> v. </em> JOINER et ux. </parties><br><docketnumber id="b312-6"> No. 96-188. </docketnumber><otherdate id="Aav"> Argued October 14, 1997 </otherdate><decisiondate id="Afz"> Decided December 15, 1997 </decisiondate><br><judges id="b313-8"> <span citation-index="1" class="star-pagination" label="137"> *137 </span> Rehnquist, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which O’Connor, Scaua, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, <span citation-index="1" class="star-pagination" label="138"> *138 </span> <em> post, </em> p. 147. Stevens, J., filed an opinion concurring in part and dissenting in part, <em> post, </em> p. 150. </judges><br><attorneys id="b314-5"> <em> Steven R. Kuney </em> argued the cause for petitioners. With him on the briefs were <em> John G. Kester, David H. Flint, Alexander J. Simmons, Jr., Henry W. Ewalt, </em> and <em> Gerard H. Davidson, Jr. </em> </attorneys><br><attorneys id="b314-6"> <em> Deputy Solicitor General Wallace </em> argued cause the United States as <em> amicus curiae </em> urging reversal. With him on the brief were <em> Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Edward C. DuMont, </em> and <em> John P. SchnitJcer. </em> </attorneys><br><attorneys id="b314-7"> <em> Michael H. Gottesman </em> argued the cause for respondents. With him on the brief were <em> Kenneth J. Chesehro, David L. Shapiro, </em> and <em> Michael J. Warshauer </em> <a class="footnote" href="#fn*" id="fn*_ref"> <em> * </em> </a> </attorneys><div class="footnotes"><div class="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b314-10"> Briefs of <em> amici curiae </em> urging reversal were filed for the Chamber of Commerce of the United States by <em> Thomas S. Martin, Stephen A. Bokat, </em> and <em> Robin S. Conrad; </em> for the American Medical Association by <em> Jack R. Bierig, Carter G. Phillips, Kirk B. Johnson, </em> and <em> Michael L. lie; </em> for the Chemical Manufacturers Association by <em> Bert Black, David J. Schenck, </em> and <em> Donald-D. Evans; </em> for Dow Chemical Company by <em> John E. Muench </em> and <em> Robert M. Dow, Jr.; </em> for the Pharmaceutical Research and Manufacturers of America by <em> Bruce N. Kuhlik; </em> for the Washington Legal Foundation by <em> Arvin-Maskin, Gerald A. Stein, Daniel J. Popeo, </em> and <em> Paul D. Kamenar; </em> and for Bruce Ames et al. by <em> Martin S. Kaufman </em> and <em> Douglas Foster. </em> </p> <p id="b314-11"> Briefs of <em> amici curiae </em> urging affirmance were yers for Public Justice by <em> Steven E. Fineman </em> and <em> Arthur H. Bryant; </em> for the Association of Trial Lawyers of America by <em> Jeffrey Robert White; </em> for Ardith Cavallo by <em> William A. Beeton, Jr.; </em> and for Peter Orris, M. D., et al. by <em> Gerson H. Smoger. </em> </p> <p id="b314-12"> Briefs of <em> amici curiae </em> were cine et al. by <em> Margaret S. Woodruff </em> and <em> Arlin M. Adams; </em> and for the Product Liability Advisory Council, Inc., et al. by <em> Mary A. Wells, Jan S. Amundson, </em> and <em> Quentin Riegel. </em> </p> </div></div>
[ "139 L. Ed. 2d 508", "118 S. Ct. 512", "522 U.S. 136", "1997 U.S. LEXIS 7503" ]
[ { "author_str": "Rehnquist", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nChief Justice Rehnquist\ndelivered the opinion of the Court.\nWe granted certiorari in this case to determine what standard an appellate court should apply in reviewing a trial *139court’s decision to admit or exclude expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). We hold that abuse of discretion is the appropriate standard. We apply this standard and conclude that the District Court in this case did not abuse its discretion when it excluded certain proffered expert testimony.\nI\nRespondent Robert Joiner began work as an electrician in the Water &amp; Light Department of Thomasville, Georgia (City), in 1973. This job required him to work with and around the City’s electrical transformers, which used a mineral-oil-based dielectric fluid as a coolant. Joiner often had to stick his hands and arms into the fluid to make repairs. The fluid would sometimes splash onto him, occasionally getting into his eyes and mouth. In 1983 the City discovered that the fluid in some of the transformers was contaminated with polychlorinated biphenyls (PCB’s). PCB’s are widely considered to be hazardous to human health. Congress, with limited exceptions, banned the production and sale of PCB’s in 1978. See 90 Stat. 2020, 15 U. S. C. § 2605(e)(2)(A).\nJoiner was diagnosed with small-cell lung cancer in 1991. He1 sued petitioners in Georgia state court the following year. Petitioner Monsanto manufactured PCB’s from 1935 to 1977; petitioners General Electric and Westinghouse Electric manufactured transformers and dielectric fluid. In his complaint Joiner linked his development of cancer to his exposure to PCB’s and their derivatives, polychlorinated diben-zofurans (furans) and polychlorinated dibenzodioxins (dioxins). Joiner had been a smoker for approximately eight years, his parents had both been smokers, and there was a history of lung cancer in his family. He was thus perhaps already at a heightened risk of developing lung cancer eventually. The suit alleged that his exposure to PCB’s “pro*140moted” his cancer; had it not been for his exposure to these substances, his cancer would not have developed for many years, if at all.\nPetitioners removed the case to there, they moved for summary judgment. They contended that (1) there was no evidence that Joiner suffered significant exposure to PCB’s, furans, or dioxins, and (2) there was no admissible scientific evidence that PCB’s promoted Joiner’s cancer. Joiner responded that there were numerous disputed factual issues that required resolution by a jury. He relied largely on the testimony of expert witnesses. In depositions, his experts had testified that PCB’s alone can promote cancer and that furans and dioxins can also promote cancer. They opined that since Joiner had been exposed to PCB’s, furans, and dioxins, such exposure was likely responsible for Joiner’s cancer.\nThe District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCB’s. But it nevertheless granted summary judgment for petitioners because (1) there was no genuine issue as to whether Joiner had been exposed to furans and dioxins, and (2) the testimony of Joiner’s experts had failed to show that there was a link between exposure to PCB’s and small-cell lung cancer. The court believed that the testimony of respondent’s experts to the contrary did not rise above “subjective belief or unsupported speculation.” 864 P. Supp. 1310, 1326 (ND Ga. 1994). Their testimony was therefore inadmissible.\nThe Court of Appeals for the Eleventh Circuit reversed. 78 F. 3d 524 (1996). It held that “[b]ecause the Federal Rules of Evidence govérning expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge’s exclusion of expert testimony.” Id., at 529. Applying that standard, the Court of Appeals held that the District Court had erred in excluding the testimony of Joiner’s expert witnesses. The *141District Court had made two fundamental errors. First, it excluded the experts’ testimony because it “drew different conclusions from the research than did each of the experts.” The Court of Appeals opined that a district court should limit its role to determining the “legal reliability of proffered expert testimony, leaving the jury to decide the correctness of competing expert opinions.” Id., at 533. Second, the District Court had held that there was no genuine issue of material fact as to whether Joiner had been exposed to fu-rans and dioxins. This was also incorrect, said the Court of Appeals, because testimony in the record supported the proposition that there had been such exposure.\nWe granted petitioners’ petition for a writ of certiorari, 520 U. S. 1114 (1997), and we now reverse.\nH-Í\nPetitioners challenge the standard applied by the Court of Appeals in reviewing the District Court’s decision to exclude respondent’s experts’ proffered testimony. They argue that that court should have applied traditional \"abuse of discretion” review. Respondent agrees that abuse of discretion is the correct standard of review. He contends, however, that the Court of Appeals applied an abuse-of-diseretion standai’d in this ease. As he reads it, the phrase \"particularly stringent” announced no new standard of review. It was simply an acknowledgment that an appellate court can and will devote more resources to analyzing district court decisions that are dispositive of the entire litigation. All evidentiary decisions are reviewed under an abuse-of-discretion standard. He argues, however, that it is perfectly reasonable for appellate courts to give particular attention to those decisions that are outcome determinative.\nWe have held that abuse of discretion is the proper standard of review of a district court’s evidentiary rulings. Old Chief v. United States, 519 U. S. 172, 174, n. 1 (1997); United States v. Abel, 469 U. S. 45, 54 (1984). Indeed, our cases on *142the subject go back as far as Spring Co. v. Edgar, 99 U. S. 645, 658 (1879), where we said that “[c]ases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous.” The Court of Appeals suggested that Daubert somehow altered this general rule in the context of a district court’s decision to exclude scientific evidence. But Daubert did not address the standard of appellate review for evi-dentiary rulings at all. It did hold that the “austere” Frye standard of “general acceptance” had not been carried over into the Federal Rules of Evidence. But the opinion also said:\n“That the Frye test was displaced by the Rules of Evidence does not mean, however, that the' Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U. S., at 589 (footnote omitted).\nThus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the “gatekeeper” role of the trial judge in screening such evidence. A court of appeals applying “abuse-of-diseretion” review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings disallowing it. Compare Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 172 (1988) (applying abuse-of-discretion review to a lower court’s decision to exclude evidence), with United States v. Abel, supra, at 54 (applying abuse-of-diseretion review to a lower court’s decision to admit evidence). We likewise reject respondent’s argument that because the granting of summary judgment in this case *143was “outcome determinative,” it should have been subjected to a more searching standard of review.' On a motion for summary judgment, disputed issues of fact are resolved against the moving party — here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewablé under the abuse-of-diseretion standard.\nWe hold that'the Court of Appeals erred in its review of the exclusion of Joiner’s experts’ testimony. In applying an overly “stringent” review to that ruling, it failed to give the trial court the deference that is the hallmark of abuse-of-diseretion review. See, e. g., Koon v. United States, 518 U. S. 81, 98-99 (1996).\nIll\nWe believe that a proper application of the correct standard of review here indicates that the District Court did not abuse its discretion. Joiner’s theory of liability was that his exposure to PCB’s and their derivatives “promoted” his development of small-cell lung cancer. In support of that theory he proffered the deposition testimony of expert witnesses. Dr. Arnold Seheeter testified that he believed it “more likely than not that Mr. Joiner’s lung cancer was causally linked to* cigarette smoking and PCB exposure.” App. 107. Dr. Daniel Teitelbaum testified that Joiner’s “lung cancer was caused by or contributed to in a significant degree by the materials with which he worked.” Id., at 140.\nPetitioners contended that the statements of Joiner’s experts regarding causation were nothing more than speculation. Petitioners criticized the testimony of the experts in that it was “not supported by epidemiological studies . . . [and was] based exclusively on isolated studies of laboratory animals.” 3 Record, Doe. No. 46 (Defendants’ Joint Memorandum in Support of Summary Judgment 3). Joiner responded by claiming that his experts had identified “relevant animal studies which support their opinions.” 4 Record, Doe. No. 53 (Plaintiffs’ Brief in Opposition to Defendants’ *144Motion for Summary Judgment 47). He also directed the court’s attention to four epidemiological studies2 on which his experts had relied.\nThe District Court studies on which respondent’s experts relied did not support his contention that exposure to PCB’s had contributed to his cancer. The studies involved infant mice that had developed cancer after being exposed to PCB’s. The infant mice in the studies had had massive doses of PCB’s injected directly into their peritoneums3 or stomachs. Joiner was an adult human being whose alleged exposure to PCB’s was far less than the exposure in the animal studies. The PCB’s were injected into the mice in a highly concentrated form. The fluid with which Joiner had come into contact generally had a much smaller PCB concentration of between 0-to-500 parts per million. The cancer that these mice developed was alveolo-genin adenomas; Joiner had developed small-cell carcinomas. No study demonstrated that adult mice developed cancer after being exposed to PCB’s. One of the experts admitted that no study had demonstrated that PCB’s lead to cancer in any other species.\nRespondent failed to reply to this criticism. Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose “to proceed as if the only issue [was] whether animal studies can ever be a proper foundation for an expert’s opinion.” 864 F. Supp., at 1824. Of course, whether animal studies can ever be a proper foundation for an expert’s opinion was not the issue. The issue was whether these experts’ opinions were sufficiently supported by the animal studies on which they purported to rely. The studies were so dissimilar to the facts presented in this liti*145gation that it was not an abuse of discretion for the District Court to have rejected the experts’ reliance on them.\nThe District Court also concluded that the four epidemiological studies on which respondent relied were not a sufficient basis for the experts’ opinions. The first such study involved workers at an Italian capacitor4 plant who had been exposed to PCB’s. Bertazzi, Riboldi, Pesatori, Radiee, &amp; Zocchetti, Cancer Mortality of Capacitor Manufacturing Workers, 11 American Journal of Industrial Medicine 165 (1987). The authors noted that lung cancer deaths among ex-employees at the plant were higher than might have been expected, but concluded that “there were apparently no grounds for associating lung cancer deaths (although increased above expectations) and exposure in the plant.” Id., at 172. Given that Bertazzi et al. were unwilling to say that PCB exposure had caused cancer among the workers they examined, their study did not support the experts’ conclusion that Joiner’s exposure to PCB’s caused his cancer.\nThe second study followed employees who had worked at Monsanto’s PCB production plant. J. Zack &amp; D. Musch, Mortality of PCB Workers at the Monsanto Plant in Sauget, Illinois (Dee. 14, 1979) (unpublished report), 3 Record, Doe. No. 11. The authors of this study found that the incidence of lung cancer deaths among these workers was somewhat higher than would ordinarily be expected. The increase, however, was not statistically significant and the authors of the study did not suggest a link between the increase in lung cancer deaths and the exposure to PCB’s.\nThe third and fourth studies were likewise of no help. The third involved workers at a Norwegian cable manufacturing company who had been exposed to mineral oil. Ronneberg, Andersen, &amp; Skyberg, Mortality and Incidence of Cancer Among Oil Exposed Workers in a Norwegian Cable Manufacturing Company, 45 British Journal of Indus*146trial Medicine 595 (1988). A statistically significant increase in lung cancer deaths had been observed in these workers. The study, however, (1) made no mention of PCB’s and (2) was expressly limited to the type of mineral oil involved in that study, and thus did not support these experts’ opinions. The fourth and final study involved a PCB-exposed group in Japan that had seen a statistically significant increase in lung cancer deaths. Kuratsune, Nakamura, Ikeda, &amp; Hirohata, Analysis of Deaths Seen Among Patients with Yusho — A Preliminary Report, 16 Chemosphere, Nos. 8/9, p. 2085 (1987). The subjects of this study, however, had been exposed to numerous potential carcinogens, including toxic rice oil that they had ingested.\nRespondent points to Dauber?s language that the “focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” 509 U. S., at 595. He claims that because the District Court’s disagreement was with the conclusion that the experts drew from the studies, the District Court committed legal error and was properly reversed by the Court of Appeals. But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc., 959 F. 2d 1349, 1360 (CA6), cert. denied, 506 U. S. 826 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.\nWe hold, therefore, that abuse of discretion is the proper standard by which to review a district court’s decision to admit or exclude scientific evidence. We further hold that, because it was within the District Court’s discretion to conclude that the studies upon which the experts relied were not *147sufficient, whether individually or in combination, to support their conclusions that Joiner’s exposure to PCB’s contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony. These conclusions, however, do not dispose of this entire ease.\nRespondent’s original contention was that his exposure to PCB’s, furans, and dioxins contributed to his cancer. The District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCB’s, but concluded that there was no genuine issue as to whether he had been exposed to furans and dioxins. The District Court accordingly never explicitly considered if there was admissible evidence on the question whether Joiner’s alleged exposure to furans and dioxins contributed to his cancer. The Court of Appeals reversed the District Court’s conclusion that there had been no exposure to furans and dioxins. Petitioners did not challenge this determination in their petition to this Court. Whether Joiner was exposed to furans and dioxins, and whether if there was such exposure, the opinions of Joiner’s experts would then be admissible, remain open questions. We accordingly reverse the judgment of the Court of Appeals and remand this ease for proceedings consistent with this opinion.\n\nIt is so ordered.\n\n\n Joiner’s wife was also a plaintiff in the suit and is a respondent here. For convenience, we refer to respondent in the singular.\n\n\n Epidemiological studies examine the pattern of disease in human populations.\n\n\n The peritoneum is the lining of the abdominal cavity.\n\n\n A capacitor is an electrical component that stores an electric charge.\n\n", "ocr": false, "opinion_id": 9433549 }, { "author_str": "Breyer", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJustice Breyer,\nconcurring.\nThe Court’s opinion, which I join, emphasizes Daubertfs statement that a trial judge, acting as “gatekeeper,” must “ 'ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.’” Ante, at 142 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993)). This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer — particularly when a ease arises in an area where the science itself is tentative or *148uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. Yet, as amici have pointed out, judges are not scientists and do not have the scientific training that can facilitate the making of such decisions. See, e. g., Brief for Trial Lawyers for Public Justice as Amicus Curiae 15; Brief for New England Journal of Medicine et al. as Amici Curiae 2 (“Judges ... are generally not trained scientists”).\nOf course, parative lack of expertise can excuse the judge from exercising the “gatekeeper” duties that the Federal Rules of Evidence impose — determining, for example, whether particular expert testimony is reliable and “will assist the trier of fact,” Fed. Rule Evid. 702, or whether the “probative value” of testimony is substantially outweighed by risks of prejudice, confusion or waste of time, Fed. Rule Evid. 403. To the contrary, when law and science intersect, those duties often must be exercised with special care.\nToday’s toxic tort case provides an example. The plaintiff in today’s case says that a chemical substance caused, or promoted, his lung cancer. His concern, and that of others, about the causes of cancer is understandable, for cancer kills over one in five Americans. See U. S. Dept, of Health and Human Services, National Center for Health Statistics, Health, United States 1996-97 and Injury Chartbook 117 (1997) (23.3% of all deaths in 1995). Moreover, scientific evidence implicates some chemicals as potential causes of some cancers. See, e. g., U. S. Dept, of Health and Human Services, Public Health Service, National Toxicology Program, 1 Seventh Annual Report on Carcinogens, pp. v-vi (1994). Yet modern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability,'which can generate *149strong financial incentives to reduce, or to eliminate, production, points toward the right substances and does not destroy the wrong ones. It is, thus, essential in this science-related area that the courts administer the Federal Rules of Evidence in order to achieve the “end[s]” that the Rules themselves set forth, not only so that proceedings may be “justly determined,” but also so “that the truth may be ascertained.” Fed. Rule Evid. 102.\nI therefore want specially to note that, as cases presenting significant science-related issues have increased in number, see Judicial Conference of the United States, Report of the Federal Courts Study Committee 97 (Apr. 2, 1990) (“Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation”), judges have increasingly found in the Rules of Evidence and Civil Procedure ways to help them overcome the inherent difficulty of making determinations about complicated scientific, or otherwise technical, evidence. Among these techniques are an increased use of Rule 16’s pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks. See J. Cecil &amp; T. Willging, Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, pp. 83-88 (1993); J. Weinstein, Individual Justice in Mass Tort Litigation 107-110 (1995); cf. Kaysen, In Memoriam: Charles E. Wyzanski, Jr., 100 Harv. L. Rev. 713, 713-715 (1987) (discussing a judge’s use of an economist as a law clerk in United States v. United Shoe Machinery Corp., 110 F. Supp. 295 (Mass. 1953), aff’d, 347 U. S. 521 (1954)).\nIn the present ease, the New England Journal of Medicine has filed an amici brief “in support of neither petitioners nor respondents” in which the Journal writes:\n“[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be *150strongly encouraged to make greater use of their inherent authority ... to appoint experts .... Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science.” Brief, supra, at 18-19.\nCf. Fed. Rule Evid. 706 (court may \"on its own motion or on the motion of any party” appoint an expert to serve on behalf of the court, and this expert may be selected as “agreed upon by the parties” or chosen by the court); see also Weinstein, supra, at 116 (a court should sometimes “go beyond the experts proffered by the parties” and “utilize its powers to appoint independent experts under Rule 706 of the Federal Rules of Evidence”). Given this kind of offer of cooperative effort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the courts’ task, it seems to me that Dauberfs gatekeeping requirement will not prove inordinately difficult to implement, and that it will help secure the basic objectives of the Federal Rules of Evidence, which are, to repeat, the ascertainment of truth and the just determination of proceedings. Fed. Rule Evid. 102.\n", "ocr": false, "opinion_id": 9433550 }, { "author_str": "Stevens", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nJustice Stevens,\nconcurring in part and dissenting in part.\nThe question that we granted certiorari to decide is whether the Court of Appeals applied the correct standard of review. That question is fully answered in Parts I and II of the Court’s opinion. Part III answers the quite different question whether the District Court properly held that the testimony of plaintiff’s expert witnesses was inadmissible. Because I am not sure that the parties have adequately briefed that question, or that the Court has adequately explained why the Court of Appeals’ disposition was erroneous, I do not join Part III. Moreover, because a proper answer to that question requires a study of the record that can be *151performed more efficiently by the Court of Appeals than by the nine Members of this Court, I would remand the case to that court for application of the proper standard of review.\nOne aspect of the record will illustrate my concern. As the Court of Appeals pointed out, Joiner’s experts relied on “the studies of at least thirteen different researchers, and referred to several reports of the World Health Organization that address the question of whether PCBs cause cancer.” 78 F. 3d 524, 533 (CA11 1996). Only one of those studies is in the record, and only six of them were discussed in the District Court opinion. Whether a fair appraisal of either the methodology or the conclusions of Joiner’s experts can be made on the basis of such an incomplete record is a question that I do not feel prepared to answer.\nIt does seem clear, however, that the Court has not adequately explained why its holding is consistent with Federal Rule of Evidence 702,1 as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).2 In general, scientific testimony that is both relevant and reliable must be admitted and testimony that is irrelevant or unreliable must be excluded. Id:, at 597. In this case, the District Court relied on both grounds for exclusion.\nThe relevance ruling was straightforward. The District Court correctly reasoned that an expert opinion that expo*152sure to PCB’s, “furans” and “dioxins” together may cause lung eancer would be irrelevant unless the plaintiff had been exposed to those substances. Having already found that there was no evidence of exposure to furans and dioxins, 864 F. Supp. 1310, 1318-1819 (ND Ga. 1994), it necessarily followed that this expert opinion testimony was inadmissible. Correctly applying. Dcmbert, the District Court explained that the experts’ testimony “manifestly does not fit the facts of this case, and is therefore inadmissible.” 864 F. Supp., at 1322. Of course, if the evidence raised a genuine issue of fact on the question of Joiner’s exposure to furans and dioxins — as the Court of Appeals held that it did — then this basis for the ruling on admissibility was erroneous, but not because the District Judge either abused her discretion or misapplied the law.3\nThe reliability ruling was more not faithful to the statement in Dcmbert that “[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.” 509 U. S., at 595. Joiner’s experts used a “weight of the evidence” methodology to assess whether Joiner’s exposure to transformer fluids promoted his lung cancer.4 They did not suggest that any *153one study provided adequate support for their conclusions, but instead relied on all the studies taken together (along with their interviews of Joiner and their review of his medical records). The District Court, however, examined the studies one by one and concluded that none was sufficient to show a link between PCB’s and lung cancer. 864 F. Supp., at 1324-1826. The focus of the opinion was on the separate studies and the conclusions of the experts, not on the experts’ methodology. Id., at 1322 (“Defendants ... persuade the court that Plaintiffs’ expert testimony would not be admissible ... by attacking the conclusions that Plaintiffs’ experts draw from the studies they cite”).\nUnlike the District Court, the Court of Appeals expressly decided that a “weight of the evidence” methodology was scientifically acceptable.6 To this extent, the Court of Appeals’ opinion is persuasive. It is not intrinsically “unscientific” for experienced professionals to arrive at a conclusion by weighing all available scientific evidence — this is not the sort of “junk science” with which Daubert was concerned.6 After all, as Joiner points out, the Environmental Protection Agency (EPA) uses the same methodology to assess risks, albeit using a somewhat different threshold than that required in a trial. Brief for Respondents 40-41 (quoting *154EPA, Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33992,33996 (1986)). Petitioners’ own experts used the same scientific approach as well.7 And using this methodology, it would seem that an expert could reasonably have concluded that the study of workers at an Italian capacitor plant, coupled with data from Monsanto’s study and other studies, raises an inference that PCB’s promote lung cancer.8\nThe Court of Appeals’ to the dictum in Daubert that the reliability inquiry must focus on methodology, not conclusions. Thus, even though I fully agree with both the District Court’s and this Court’s explanation of why each of the studies on which the experts relied was by itself unpersuasive, a critical question remains unanswered: When qualified experts have reached relevant conclusions on the basis of an acceptable methodology, why are their opinions inadmissible?\nDaubert quite clearly forbids validity or strength of an expert’s scientific conclusions, which is a matter for the jury.9 Because I am persuaded *155that the difference between methodology and conclusions is just as categorical as the distinction between means and ends, I do not think the statement that “conclusions and methodology are not entirely distinct from one another,” ante, at 146, either is accurate or helps us answer the difficult admissibility question presented by this record.\nIn any event, it bears emphasis that the Court has not held that it would have been an abuse of discretion to admit the expert testimony. The very point of today’s holding is that the abuse-of-diseretion standard of review applies whether the district judge has excluded or admitted evidence. Ante, at 142. And nothing in either Daubert or the Federal Rules of Evidence requires a district judge to reject an expert’s conclusions and keep them from the jury when they fit the facts of the case and are based on reliable scientific methodology.\nAccordingly, while I join Parts I and II of the Court’s opinion, I do not concur in the judgment or in Part III of its opinion.\n\n Rule 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or 'otherwise.”\n\n\n The specific question on which the Court granted certiorari in Daubert was whether the rule of Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923), remained valid after the enactment of the Federal Rules of Evidence, but the Court went beyond that issue and set forth alternative requirements for admissibility in place of the Frye test. Even though the Daubert test was announced in dicta, see 509 U. S., at 598-601 (Rehnquist, C. J., concurring in part and dissenting in part), we should not simply ignore its analysis in reviewing the District Court’s rulings.\n\n\n Petitioners do not challenge the Court of Appeals’ straightforward review of the District Court’s summary judgment ruling on exposure to furans and dioxins. As today’s opinion indicates, ante, at 147, it remains an open question on remand whether the District Court should admit expert testimony that PCB’s, furans, and dioxins together promoted Joiner’s eancer.\n\n\n Dr. Daniel Teitelbaum elaborated on that approach in his deposition testimony: “[A]s a toxicologist when I look at a study, I am going to require that that study meet the general criteria for methodology and statistical analysis, but that when all of that data is collected and you ask me as a patient, ‘Doctor, have I got a risk of getting cancer from this?’ That those studies don’t answer the question, that I have to put them all together in my mind and look at them in relation to everything I know about the substance and everything I know about the exposure and come to a conclusion. I think when I say, ‘To a reasonable medical probability as a medical toxicologist, this substance was a contributing cause,’... to his eancer, *153that that is a valid conclusion based on the totality of the evidence presented to me. And I think that that is an appropriate thing for a toxicologist to do, and it has been the basis of diagnosis for several hundred years, anyway.” Supp. App. to Brief for Respondents 19.\n\n\n The court explained: “Opinions of any kind are derived from individual pieces of evidence, each of which by itself might not be conclusive, but when viewed in their entirety are the building blocks of a perfectly reasonable conclusion, one reliable enough to be submitted to a jury along with the tests and criticisms cross-examination and contrary evidence would supply.” 78 F. 3d 524, 532 (CA11 1996).\n\n\n An example of “junk science” that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant’s future dangerousness based on the contours of the defendant’s skull.\n\n\n See, e. g., Deposition of Dr. William Charles Bailey, Supp. App. to Brief for Respondents 56 (‘Tve just reviewed a lot of literature and come to some conclusions ...”).\n\n\n The Italian capacitor plant study found that workers had a higher-than-expeeted rate of lung cancer death, though “‘the numbers were small [and] the value of the risk estimate was not statistically significant.’” 864 F. Supp. 1310, 1324 (ND Ga. 1994). The Monsanto study also found a correlation between PCB exposure and lung cancer death, but the results were not statistically significant. Id., at 1325. Moreover, it should be noted that under Georgia law, which applies in this diversity suit, Joiner need only show that his exposure to PCB’s ‘“promoted’ ” his lung cancer, not that it was the sole cause of his cancer. Brief for Respondents 7, n. 16 (quoting Brief for Appellants in No. 94-9131 (CA11), pp. 7-10).\n\n\n The Court stated, in tion of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.. .. Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a.position is insufficient to *155allow a reasonable juror to condude that the position more likely than not is true, the court remains free to direet a judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56.... These conventional devices, rather than wholesale exclusion under an uncompromising ‘general acceptance’ test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.” 509 U. S., at 596.\n\n", "ocr": false, "opinion_id": 9433551 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 2691, "opinion_text": "\n522 U.S. 136 (1997)\nGENERAL ELECTRIC CO. et al.\nv.\nJOINER et ux.\nNo. 96-188.\nUnited States Supreme Court.\nArgued October 14, 1997.\nDecided December 15, 1997.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT\n*137 Rehnquist, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Part III, in which O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, *138 post, p. 147. Stevens, J., filed an opinion concurring in part and dissenting in part, post, p. 150.\nSteven R. Kuney argued the cause for petitioners. With him on the briefs were John G. Kester, David H. Flint, Alexander J. Simmons, Jr., Henry W. Ewalt, and Gerard H. Davidson, Jr.\nDeputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Edward C. DuMont, and John P. Schnitker.\nMichael H. Gottesman argued the cause for respondents. With him on the brief were Kenneth J. Chesebro, David L. Shapiro, and Michael J. Warshauer.[*]\nChief Justice Rehnquist delivered the opinion of the Court.\nWe granted certiorari in this case to determine what standard an appellate court should apply in reviewing a trial *139 court's decision to admit or exclude expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993). We hold that abuse of discretion is the appropriate standard. We apply this standard and conclude that the District Court in this case did not abuse its discretion when it excluded certain proffered expert testimony.\n\nI\nRespondent Robert Joiner began work as an electrician in the Water &amp; Light Department of Thomasville, Georgia (City), in 1973. This job required him to work with and around the City's electrical transformers, which used a mineral-oil-based dielectric fluid as a coolant. Joiner often had to stick his hands and arms into the fluid to make repairs. The fluid would sometimes splash onto him, occasionally getting into his eyes and mouth. In 1983 the City discovered that the fluid in some of the transformers was contaminated with polychlorinated biphenyls (PCB's). PCB's are widely considered to be hazardous to human health. Congress, with limited exceptions, banned the production and sale of PCB's in 1978. See 90 Stat. 2020, 15 U. S. C. § 2605(e)(2)(A).\nJoiner was diagnosed with small-cell lung cancer in 1991. He[1] sued petitioners in Georgia state court the following year. Petitioner Monsanto manufactured PCB's from 1935 to 1977; petitioners General Electric and Westinghouse Electric manufactured transformers and dielectric fluid. In his complaint Joiner linked his development of cancer to his exposure to PCB's and their derivatives, polychlorinated dibenzofurans (furans) and polychlorinated dibenzodioxins (dioxins). Joiner had been a smoker for approximately eight years, his parents had both been smokers, and there was a history of lung cancer in his family. He was thus perhaps already at a heightened risk of developing lung cancer eventually. The suit alleged that his exposure to PCB's \"promoted\" *140 his cancer; had it not been for his exposure to these substances, his cancer would not have developed for many years, if at all.\nPetitioners removed the case to federal court. Once there, they moved for summary judgment. They contended that (1) there was no evidence that Joiner suffered significant exposure to PCB's, furans, or dioxins, and (2) there was no admissible scientific evidence that PCB's promoted Joiner's cancer. Joiner responded that there were numerous disputed factual issues that required resolution by a jury. He relied largely on the testimony of expert witnesses. In depositions, his experts had testified that PCB's alone can promote cancer and that furans and dioxins can also promote cancer. They opined that since Joiner had been exposed to PCB's, furans, and dioxins, such exposure was likely responsible for Joiner's cancer.\nThe District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCB's. But it nevertheless granted summary judgment for petitioners because (1) there was no genuine issue as to whether Joiner had been exposed to furans and dioxins, and (2) the testimony of Joiner's experts had failed to show that there was a link between exposure to PCB's and small-cell lung cancer. The court believed that the testimony of respondent's experts to the contrary did not rise above \"subjective belief or unsupported speculation.\" 864 F. Supp. 1310, 1326 (ND Ga. 1994). Their testimony was therefore inadmissible.\nThe Court of Appeals for the Eleventh Circuit reversed. 78 F. 3d 524 (1996). It held that \"[b]ecause the Federal Rules of Evidence governing expert testimony display a preference for admissibility, we apply a particularly stringent standard of review to the trial judge's exclusion of expert testimony.\" Id., at 529. Applying that standard, the Court of Appeals held that the District Court had erred in excluding the testimony of Joiner's expert witnesses. The *141 District Court had made two fundamental errors. First, it excluded the experts' testimony because it \"drew different conclusions from the research than did each of the experts.\" The Court of Appeals opined that a district court should limit its role to determining the \"legal reliability of proffered expert testimony, leaving the jury to decide the correctness of competing expert opinions.\" Id., at 533. Second, the District Court had held that there was no genuine issue of material fact as to whether Joiner had been exposed to furans and dioxins. This was also incorrect, said the Court of Appeals, because testimony in the record supported the proposition that there had been such exposure.\nWe granted petitioners' petition for a writ of certiorari, 520 U. S. 1114 (1997), and we now reverse.\n\nII\nPetitioners challenge the standard applied by the Court of Appeals in reviewing the District Court's decision to exclude respondent's experts' proffered testimony. They argue that that court should have applied traditional \"abuse of discretion\" review. Respondent agrees that abuse of discretion is the correct standard of review. He contends, however, that the Court of Appeals applied an abuse-of-discretion standard in this case. As he reads it, the phrase \"particularly stringent\" announced no new standard of review. It was simply an acknowledgment that an appellate court can and will devote more resources to analyzing district court decisions that are dispositive of the entire litigation. All evidentiary decisions are reviewed under an abuse-of-discretion standard. He argues, however, that it is perfectly reasonable for appellate courts to give particular attention to those decisions that are outcome determinative.\nWe have held that abuse of discretion is the proper standard of review of a district court's evidentiary rulings. Old Chief v. United States, 519 U. S. 172, 174, n. 1 (1997); United States v. Abel, 469 U. S. 45, 54 (1984). Indeed, our cases on *142 the subject go back as far as Spring Co. v. Edgar, 99 U. S. 645, 658 (1879), where we said that \"[c]ases arise where it is very much a matter of discretion with the court whether to receive or exclude the evidence; but the appellate court will not reverse in such a case, unless the ruling is manifestly erroneous.\" The Court of Appeals suggested that Daubert somehow altered this general rule in the context of a district court's decision to exclude scientific evidence. But Daubert did not address the standard of appellate review for evidentiary rulings at all. It did hold that the \"austere\" Frye standard of \"general acceptance\" had not been carried over into the Federal Rules of Evidence. But the opinion also said:\n\"That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.\" 509 U. S., at 589 (footnote omitted).\nThus, while the Federal Rules of Evidence allow district courts to admit a somewhat broader range of scientific testimony than would have been admissible under Frye, they leave in place the \"gatekeeper\" role of the trial judge in screening such evidence. A court of appeals applying \"abuse-of-discretion\" review to such rulings may not categorically distinguish between rulings allowing expert testimony and rulings disallowing it. Compare Beech Aircraft Corp. v. Rainey, 488 U. S. 153, 172 (1988) (applying abuse-ofdiscretion review to a lower court's decision to exclude evidence), with United States v. Abel, supra, at 54 (applying abuse-of-discretion review to a lower court's decision to admit evidence). We likewise reject respondent's argument that because the granting of summary judgment in this case *143 was \"outcome determinative,\" it should have been subjected to a more searching standard of review. On a motion for summary judgment, disputed issues of fact are resolved against the moving party—here, petitioners. But the question of admissibility of expert testimony is not such an issue of fact, and is reviewable under the abuse-of-discretion standard.\nWe hold that the Court of Appeals erred in its review of the exclusion of Joiner's experts' testimony. In applying an overly \"stringent\" review to that ruling, it failed to give the trial court the deference that is the hallmark of abuse-ofdiscretion review. See, e. g., Koon v. United States, 518 U. S. 81, 98-99 (1996).\n\nIII\nWe believe that a proper application of the correct standard of review here indicates that the District Court did not abuse its discretion. Joiner's theory of liability was that his exposure to PCB's and their derivatives \"promoted\" his development of small-cell lung cancer. In support of that theory he proffered the deposition testimony of expert witnesses. Dr. Arnold Schecter testified that he believed it \"more likely than not that Mr. Joiner's lung cancer was causally linked to cigarette smoking and PCB exposure.\" App. 107. Dr. Daniel Teitelbaum testified that Joiner's \"lung cancer was caused by or contributed to in a significant degree by the materials with which he worked.\" Id., at 140.\nPetitioners contended that the statements of Joiner's experts regarding causation were nothing more than speculation. Petitioners criticized the testimony of the experts in that it was \"not supported by epidemiological studies . . . [and was] based exclusively on isolated studies of laboratory animals.\" 3 Record, Doc. No. 46 (Defendants' Joint Memorandum in Support of Summary Judgment 3). Joiner responded by claiming that his experts had identified \"relevant animal studies which support their opinions.\" 4 Record, Doc. No. 53 (Plaintiffs' Brief in Opposition to Defendants' *144 Motion for Summary Judgment 47). He also directed the court's attention to four epidemiological studies[2] on which his experts had relied.\nThe District Court agreed with petitioners that the animal studies on which respondent's experts relied did not support his contention that exposure to PCB's had contributed to his cancer. The studies involved infant mice that had developed cancer after being exposed to PCB's. The infant mice in the studies had had massive doses of PCB's injected directly into their peritoneums[3] or stomachs. Joiner was an adult human being whose alleged exposure to PCB's was far less than the exposure in the animal studies. The PCB's were injected into the mice in a highly concentrated form. The fluid with which Joiner had come into contact generally had a much smaller PCB concentration of between 0-to-500 parts per million. The cancer that these mice developed was alveologenic adenomas; Joiner had developed small-cell carcinomas. No study demonstrated that adult mice developed cancer after being exposed to PCB's. One of the experts admitted that no study had demonstrated that PCB's lead to cancer in any other species.\nRespondent failed to reply to this criticism. Rather than explaining how and why the experts could have extrapolated their opinions from these seemingly far-removed animal studies, respondent chose \"to proceed as if the only issue [was] whether animal studies can ever be a proper foundation for an expert's opinion.\" 864 F. Supp., at 1324. Of course, whether animal studies can ever be a proper foundation for an expert's opinion was not the issue. The issue was whether these experts' opinions were sufficiently supported by the animal studies on which they purported to rely. The studies were so dissimilar to the facts presented in this litigation *145 that it was not an abuse of discretion for the District Court to have rejected the experts' reliance on them.\nThe District Court also concluded that the four epidemiological studies on which respondent relied were not a sufficient basis for the experts' opinions. The first such study involved workers at an Italian capacitor[4] plant who had been exposed to PCB's. Bertazzi, Riboldi, Pesatori, Radice, &amp; Zocchetti, Cancer Mortality of Capacitor Manufacturing Workers, 11 American Journal of Industrial Medicine 165 (1987). The authors noted that lung cancer deaths among ex-employees at the plant were higher than might have been expected, but concluded that \"there were apparently no grounds for associating lung cancer deaths (although increased above expectations) and exposure in the plant.\" Id., at 172. Given that Bertazzi et al. were unwilling to say that PCB exposure had caused cancer among the workers they examined, their study did not support the experts' conclusion that Joiner's exposure to PCB's caused his cancer.\nThe second study followed employees who had worked at Monsanto's PCB production plant. J. Zack &amp; D. Musch, Mortality of PCB Workers at the Monsanto Plant in Sauget, Illinois (Dec. 14, 1979) (unpublished report), 3 Record, Doc. No. 11. The authors of this study found that the incidence of lung cancer deaths among these workers was somewhat higher than would ordinarily be expected. The increase, however, was not statistically significant and the authors of the study did not suggest a link between the increase in lung cancer deaths and the exposure to PCB's.\nThe third and fourth studies were likewise of no help. The third involved workers at a Norwegian cable manufacturing company who had been exposed to mineral oil. Ronneberg, Andersen, &amp; Skyberg, Mortality and Incidence of Cancer Among Oil Exposed Workers in a Norwegian Cable Manufacturing Company, 45 British Journal of Industrial *146 Medicine 595 (1988). A statistically significant increase in lung cancer deaths had been observed in these workers. The study, however, (1) made no mention of PCB's and (2) was expressly limited to the type of mineral oil involved in that study, and thus did not support these experts' opinions. The fourth and final study involved a PCB-exposed group in Japan that had seen a statistically significant increase in lung cancer deaths. Kuratsune, Nakamura, Ikeda, &amp; Hirohata, Analysis of Deaths Seen Among Patients with Yusho—A Preliminary Report, 16 Chemosphere, Nos. 8/9, p. 2085 (1987). The subjects of this study, however, had been exposed to numerous potential carcinogens, including toxic rice oil that they had ingested.\nRespondent points to Daubert `s language that the \"focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.\" 509 U. S., at 595. He claims that because the District Court's disagreement was with the conclusion that the experts drew from the studies, the District Court committed legal error and was properly reversed by the Court of Appeals. But conclusions and methodology are not entirely distinct from one another. Trained experts commonly extrapolate from existing data. But nothing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered. See Turpin v. Merrell Dow Pharmaceuticals, Inc. , 959 F. 2d 1349, 1360 (CA6), cert. denied, 506 U. S. 826 (1992). That is what the District Court did here, and we hold that it did not abuse its discretion in so doing.\nWe hold, therefore, that abuse of discretion is the proper standard by which to review a district court's decision to admit or exclude scientific evidence. We further hold that, because it was within the District Court's discretion to conclude that the studies upon which the experts relied were not *147 sufficient, whether individually or in combination, to support their conclusions that Joiner's exposure to PCB's contributed to his cancer, the District Court did not abuse its discretion in excluding their testimony. These conclusions, however, do not dispose of this entire case.\nRespondent's original contention was that his exposure to PCB's, furans, and dioxins contributed to his cancer. The District Court ruled that there was a genuine issue of material fact as to whether Joiner had been exposed to PCB's, but concluded that there was no genuine issue as to whether he had been exposed to furans and dioxins. The District Court accordingly never explicitly considered if there was admissible evidence on the question whether Joiner's alleged exposure to furans and dioxins contributed to his cancer. The Court of Appeals reversed the District Court's conclusion that there had been no exposure to furans and dioxins. Petitioners did not challenge this determination in their petition to this Court. Whether Joiner was exposed to furans and dioxins, and whether if there was such exposure, the opinions of Joiner's experts would then be admissible, remain open questions. We accordingly reverse the judgment of the Court of Appeals and remand this case for proceedings consistent with this opinion.\nIt is so ordered.\nJustice Breyer, concurring.\nThe Court's opinion, which I join, emphasizes Daubert `s statement that a trial judge, acting as \"gatekeeper,\" must \"`ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' \" Ante, at 142 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579, 589 (1993)). This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer—particularly when a case arises in an area where the science itself is tentative or *148 uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. Yet, as amici have pointed out, judges are not scientists and do not have the scientific training that can facilitate the making of such decisions. See, e. g., Brief for Trial Lawyers for Public Justice as Amicus Curiae 15; Brief for New England Journal of Medicine et al. as Amici Curiae 2 (\"Judges . . . are generally not trained scientists\").\nOf course, neither the difficulty of the task nor any comparative lack of expertise can excuse the judge from exercising the \"gatekeeper\" duties that the Federal Rules of Evidence impose—determining, for example, whether particular expert testimony is reliable and \"will assist the trier of fact,\" Fed. Rule Evid. 702, or whether the \"probative value\" of testimony is substantially outweighed by risks of prejudice, confusion or waste of time, Fed. Rule Evid. 403. To the contrary, when law and science intersect, those duties often must be exercised with special care.\nToday's toxic tort case provides an example. The plaintiff in today's case says that a chemical substance caused, or promoted, his lung cancer. His concern, and that of others, about the causes of cancer is understandable, for cancer kills over one in five Americans. See U. S. Dept. of Health and Human Services, National Center for Health Statistics, Health, United States 1996-97 and Injury Chartbook 117 (1997) (23.3% of all deaths in 1995). Moreover, scientific evidence implicates some chemicals as potential causes of some cancers. See, e. g., U. S. Dept. of Health and Human Services, Public Health Service, National Toxicology Program, 1 Seventh Annual Report on Carcinogens, pp. v—vi (1994). Yet modern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate *149 strong financial incentives to reduce, or to eliminate, production, points toward the right substances and does not destroy the wrong ones. It is, thus, essential in this sciencerelated area that the courts administer the Federal Rules of Evidence in order to achieve the \"end[s]\" that the Rules themselves set forth, not only so that proceedings may be \"justly determined,\" but also so \"that the truth may be ascertained.\" Fed. Rule Evid. 102.\nI therefore want specially to note that, as cases presenting significant science-related issues have increased in number, see Judicial Conference of the United States, Report of the Federal Courts Study Committee 97 (Apr. 2, 1990) (\"Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation\"), judges have increasingly found in the Rules of Evidence and Civil Procedure ways to help them overcome the inherent difficulty of making determinations about complicated scientific, or otherwise technical, evidence. Among these techniques are an increased use of Rule 16's pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks. See J. Cecil &amp; T. Willging, Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, pp. 83-88 (1993); J. Weinstein, Individual Justice in Mass Tort Litigation 107-110 (1995); cf. Kaysen, In Memoriam: Charles E. Wyzanski, Jr., 100 Harv. L. Rev. 713, 713-715 (1987) (discussing a judge's use of an economist as a law clerk in United States v. United Shoe Machinery Corp., 110 F. Supp. 295 (Mass. 1953), aff'd, 347 U. S. 521 (1954)).\nIn the present case, the New England Journal of Medicine has filed an amici brief \"in support of neither petitioners nor respondents\" in which the Journal writes:\n\"[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be *150 strongly encouraged to make greater use of their inherent authority . . . to appoint experts . . . . Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science.\" Brief, supra, at 18-19.\nCf. Fed. Rule Evid. 706 (court may \"on its own motion or on the motion of any party\" appoint an expert to serve on behalf of the court, and this expert may be selected as \"agreed upon by the parties\" or chosen by the court); see also Weinstein, supra, at 116 (a court should sometimes \"go beyond the experts proffered by the parties\" and \"utilize its powers to appoint independent experts under Rule 706 of the Federal Rules of Evidence\"). Given this kind of offer of cooperative effort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the courts' task, it seems to me that Daubert `s gatekeeping requirement will not prove inordinately difficult to implement, and that it will help secure the basic objectives of the Federal Rules of Evidence, which are, to repeat, the ascertainment of truth and the just determination of proceedings. Fed. Rule Evid. 102.\nJustice Stevens, concurring in part and dissenting in part.\nThe question that we granted certiorari to decide is whether the Court of Appeals applied the correct standard of review. That question is fully answered in Parts I and II of the Court's opinion. Part III answers the quite different question whether the District Court properly held that the testimony of plaintiff's expert witnesses was inadmissible. Because I am not sure that the parties have adequately briefed that question, or that the Court has adequately explained why the Court of Appeals' disposition was erroneous, I do not join Part III. Moreover, because a proper answer to that question requires a study of the record that can be *151 performed more efficiently by the Court of Appeals than by the nine Members of this Court, I would remand the case to that court for application of the proper standard of review.\nOne aspect of the record will illustrate my concern. As the Court of Appeals pointed out, Joiner's experts relied on \"the studies of at least thirteen different researchers, and referred to several reports of the World Health Organization that address the question of whether PCBs cause cancer.\" 78 F. 3d 524, 533 (CA11 1996). Only one of those studies is in the record, and only six of them were discussed in the District Court opinion. Whether a fair appraisal of either the methodology or the conclusions of Joiner's experts can be made on the basis of such an incomplete record is a question that I do not feel prepared to answer.\nIt does seem clear, however, that the Court has not adequately explained why its holding is consistent with Federal Rule of Evidence 702,[1] as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993).[2] In general, scientific testimony that is both relevant and reliable must be admitted and testimony that is irrelevant or unreliable must be excluded. Id., at 597. In this case, the District Court relied on both grounds for exclusion.\nThe relevance ruling was straightforward. The District Court correctly reasoned that an expert opinion that exposure *152 to PCB's, \"furans\" and \"dioxins\" together may cause lung cancer would be irrelevant unless the plaintiff had been exposed to those substances. Having already found that there was no evidence of exposure to furans and dioxins, 864 F. Supp. 1310, 1318-1319 (ND Ga. 1994), it necessarily followed that this expert opinion testimony was inadmissible. Correctly applying Daubert, the District Court explained that the experts' testimony \"manifestly does not fit the facts of this case, and is therefore inadmissible.\" 864 F. Supp., at 1322. Of course, if the evidence raised a genuine issue of fact on the question of Joiner's exposure to furans and dioxins—as the Court of Appeals held that it did—then this basis for the ruling on admissibility was erroneous, but not because the District Judge either abused her discretion or misapplied the law.[3]\nThe reliability ruling was more complex and arguably is not faithful to the statement in Daubert that \"[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.\" 509 U. S., at 595. Joiner's experts used a \"weight of the evidence\" methodology to assess whether Joiner's exposure to transformer fluids promoted his lung cancer.[4] They did not suggest that any *153 one study provided adequate support for their conclusions, but instead relied on all the studies taken together (along with their interviews of Joiner and their review of his medical records). The District Court, however, examined the studies one by one and concluded that none was sufficient to show a link between PCB's and lung cancer. 864 F. Supp., at 1324-1326. The focus of the opinion was on the separate studies and the conclusions of the experts, not on the experts' methodology. Id., at 1322 (\"Defendants . . . persuade the court that Plaintiffs' expert testimony would not be admissible . . . by attacking the conclusions that Plaintiffs' experts draw from the studies they cite\").\nUnlike the District Court, the Court of Appeals expressly decided that a \"weight of the evidence\" methodology was scientifically acceptable.[5] To this extent, the Court of Appeals' opinion is persuasive. It is not intrinsically \"unscientific\" for experienced professionals to arrive at a conclusion by weighing all available scientific evidence—this is not the sort of \"junk science\" with which Daubert was concerned.[6] After all, as Joiner points out, the Environmental Protection Agency (EPA) uses the same methodology to assess risks, albeit using a somewhat different threshold than that required in a trial. Brief for Respondents 40-41 (quoting *154 EPA, Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33992, 33996 (1986)). Petitioners' own experts used the same scientific approach as well.[7] And using this methodology, it would seem that an expert could reasonably have concluded that the study of workers at an Italian capacitor plant, coupled with data from Monsanto's study and other studies, raises an inference that PCB's promote lung cancer.[8]\nThe Court of Appeals' discussion of admissibility is faithful to the dictum in Daubert that the reliability inquiry must focus on methodology, not conclusions. Thus, even though I fully agree with both the District Court's and this Court's explanation of why each of the studies on which the experts relied was by itself unpersuasive, a critical question remains unanswered: When qualified experts have reached relevant conclusions on the basis of an acceptable methodology, why are their opinions inadmissible?\nDaubert quite clearly forbids trial judges to assess the validity or strength of an expert's scientific conclusions, which is a matter for the jury.[9] Because I am persuaded *155 that the difference between methodology and conclusions is just as categorical as the distinction between means and ends, I do not think the statement that \"conclusions and methodology are not entirely distinct from one another,\" ante, at 146, either is accurate or helps us answer the difficult admissibility question presented by this record.\nIn any event, it bears emphasis that the Court has not held that it would have been an abuse of discretion to admit the expert testimony. The very point of today's holding is that the abuse-of-discretion standard of review applies whether the district judge has excluded or admitted evidence. Ante, at 142. And nothing in either Daubert or the Federal Rules of Evidence requires a district judge to reject an expert's conclusions and keep them from the jury when they fit the facts of the case and are based on reliable scientific methodology.\nAccordingly, while I join Parts I and II of the Court's opinion, I do not concur in the judgment or in Part III of its opinion.\nNOTES\n[*] Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Thomas S. Martin, Stephen A. Bokat, and Robin S. Conrad; for the American Medical Association by Jack R. Bierig, Carter G. Phillips, Kirk B. Johnson, and Michael L. Ile; for the Chemical Manufacturers Association by Bert Black, David J. Schenck, and Donald D. Evans; for Dow Chemical Company by John E. Muench and Robert M. Dow, Jr.; for the Pharmaceutical Research and Manufacturers of America by Bruce N. Kuhlik; for the Washington Legal Foundation by Arvin Maskin, Gerald A. Stein, Daniel J. Popeo, and Paul D. Kamenar; and for Bruce Ames et al. by Martin S. Kaufman and Douglas Foster.\n\nBriefs of amici curiae urging affirmance were filed for the Trial Lawyers for Public Justice by Steven E. Fineman and Arthur H. Bryant; for the Association of Trial Lawyers of America by Jeffrey Robert White; for Ardith Cavallo by William A. Beeton, Jr.; and for Peter Orris, M. D., et al. by Gerson H. Smoger.\nBriefs of amici curiae were filed for the New England Journal of Medicine et al. by Margaret S. Woodruff and Arlin M. Adams; and for the Product Liability Advisory Council, Inc., et al. by Mary A. Wells, Jan S. Amundson, and Quentin Riegel.\n[1] Joiner's wife was also a plaintiff in the suit and is a respondent here. For convenience, we refer to respondent in the singular.\n[2] Epidemiological studies examine the pattern of disease in human populations.\n[3] The peritoneum is the lining of the abdominal cavity.\n[4] A capacitor is an electrical component that stores an electric charge.\n[1] Rule 702 states: \"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.\"\n[2] The specific question on which the Court granted certiorari in Daubert was whether the rule of Frye v. United States, 54 App. D. C. 46, 293 F. 1013 (1923), remained valid after the enactment of the Federal Rules of Evidence, but the Court went beyond that issue and set forth alternative requirements for admissibility in place of the Frye test. Even though the Daubert test was announced in dicta, see 509 U. S., at 598-601 (Rehnquist, C. J., concurring in part and dissenting in part), we should not simply ignore its analysis in reviewing the District Court's rulings.\n[3] Petitioners do not challenge the Court of Appeals' straightforward review of the District Court's summary judgment ruling on exposure to furans and dioxins. As today's opinion indicates, ante, at 147, it remains an open question on remand whether the District Court should admit expert testimony that PCB's, furans, and dioxins together promoted Joiner's cancer.\n[4] Dr. Daniel Teitelbaum elaborated on that approach in his deposition testimony: \"[A]s a toxicologist when I look at a study, I am going to require that that study meet the general criteria for methodology and statistical analysis, but that when all of that data is collected and you ask me as a patient, `Doctor, have I got a risk of getting cancer from this?' That those studies don't answer the question, that I have to put them all together in my mind and look at them in relation to everything I know about the substance and everything I know about the exposure and come to a conclusion. I think when I say, `To a reasonable medical probability as a medical toxicologist, this substance was a contributing cause,' . . . to hiscancer, that that is a valid conclusion based on the totality of the evidence presented to me. And I think that that is an appropriate thing for a toxicologist to do, and it has been the basis of diagnosis for several hundred years, anyway.\" Supp. App. to Brief for Respondents 19.\n[5] The court explained: \"Opinions of any kind are derived from individual pieces of evidence, each of which by itself might not be conclusive, but when viewed in their entirety are the building blocks of a perfectly reasonable conclusion, one reliable enough to be submitted to a jury along with the tests and criticisms cross-examination and contrary evidence would supply.\" 78 F. 3d 524, 532 (CA11 1996).\n[6] An example of \"junk science\" that should be excluded under Daubert as too unreliable would be the testimony of a phrenologist who would purport to prove a defendant's future dangerousness based on the contours of the defendant's skull.\n[7] See, e. g., Deposition of Dr. William Charles Bailey, Supp. App. to Brief for Respondents 56 (\"I've just reviewed a lot of literature and come to some conclusions . . .\").\n[8] The Italian capacitor plant study found that workers exposed to PCB's had a higher-than-expected rate of lung cancer death, though \"`the numbers were small [and] the value of the risk estimate was not statistically significant.' \" 864 F. Supp. 1310, 1324 (ND Ga. 1994). The Monsanto study also found a correlation between PCB exposure and lung cancer death, but the results were not statistically significant. Id., at 1325. Moreover, it should be noted that under Georgia law, which applies in this diversity suit, Joiner need only show that his exposure to PCB's \"`promoted' \" his lung cancer, not that it was the sole cause of his cancer. Brief for Respondents 7, n. 16 (quoting Brief for Appellants in No. 94-9131 (CA11), pp. 7-10).\n[9] The Court stated in Daubert: \"Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. . . . Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allowa reasonable juror to conclude that the position more likely than not is true, the court remains free to direct ajudgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56. . . . These conventional devices, rather than wholesale exclusion under an uncompromising `general acceptance' test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702.\" 509 U. S.,at 596.\n\n", "ocr": false, "opinion_id": 118157 } ]
Supreme Court
Supreme Court of the United States
F
USA, Federal
628,757
null
1993-08-12
false
bodin-v-marinovich
Bodin
Bodin v. Marinovich
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "3 F.3d 437" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/3/3.F3d.437.93-3238.html", "author_id": null, "opinion_text": "3 F.3d 437\n Bodinv.Marinovich*\n NO. 93-3238\n United States Court of Appeals,Fifth Circuit.\n Aug 12, 1993\n \n 1\n Appeal From: E.D.La.\n \n \n 2\n AFFIRMED.\n \n \n \n *\n Fed.R.App.P. 34(a); 5th Cir.R. 34.2\n \n \n ", "ocr": false, "opinion_id": 628757 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
2,651,967
Benavides, Owen, Southwick
2014-01-31
false
cristoval-silva-trevino-v-eric-holder-jr
null
Cristoval Silva-Trevino v. Eric Holder, Jr.
Cristoval SILVA-TREVINO, Also Known as Cristobal Silva-Trevinio, Petitioner v. Eric. H. HOLDER, Jr., United States Attorney General, Respondent
Elisabeth S. Brodyaga, San Benito, TX, for Petitioner., Julie Marie Iversen, Trial Attorney, Tangerlia Cox, Lynda A. Do, Washington, DC, for Respondent.
null
null
null
null
null
null
null
null
null
null
0
Published
null
<parties id="b223-12"> Cristoval SILVA-TREVINO, also known as Cristobal Silva-Trevinio, Petitioner v. Eric. H. HOLDER, Jr., United States Attorney General, Respondent. </parties><br><docketnumber id="b223-15"> No. 11-60464. </docketnumber><br><court id="b223-16"> United States Court of Appeals, Fifth Circuit. </court><br><decisiondate id="b223-18"> Jan. 30, 2014. </decisiondate><br><attorneys id="b224-17"> <span citation-index="1" class="star-pagination" label="198"> *198 </span> Elisabeth S. Brodyaga, San Benito, TX, for Petitioner. </attorneys><br><attorneys id="b224-18"> Julie Marie Iversen, Trial Attorney, Tangerlia Cox, Lynda A. Do, Washington, DC, for Respondent. </attorneys><br><judges id="b224-20"> Before BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges. </judges>
[ "742 F.3d 197" ]
[ { "author_str": "Benavides", "per_curiam": false, "type": "010combined", "page_count": 15, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\11/11-60464-CV0.pdf", "author_id": null, "opinion_text": " Case: 11-60464 Document: 00512517048 Page: 1 Date Filed: 01/30/2014\n\n\n\n\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT United States Court of Appeals\n Fifth Circuit\n\n FILED\n January 30, 2014\n No. 11-60464\n Lyle W. Cayce\n Clerk\nCRISTOVAL SILVA-TREVINO, also known as Cristobal Silva-Trevinio,\n\n Petitioner\nv.\n\nERIC. H. HOLDER, Jr., UNITED STATES ATTORNEY GENERAL,\n\n Respondent\n\n\n\n\n Petition for Review of an Order of the\n Board of Immigration Appeals\n\n\nBefore BENAVIDES, OWEN, and SOUTHWICK, Circuit Judges.\nFORTUNATO P. BENAVIDES, Circuit Judge:\n Cristoval Silva-Trevino challenges a new method the Attorney General\nand the Board of Immigration Appeals (“the Board”) used to determine that he\nhad been convicted of a crime involving moral turpitude for the purposes of\nadmissibility under § 212 of the Immigration and Naturalization Act (“INA”),\n8 U.S.C. § 1100, et seq. Because we find the contested method inconsistent\nwith the unambiguous language of the relevant statutory provision, we vacate\nthe Board’s determination.\n I.\n This case arises out of proceedings to remove Silva-Trevino pursuant to\n§ 237 of the INA, which permits the removal of aliens convicted of an\naggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Silva-Trevino concedes\n\f Case: 11-60464 Document: 00512517048 Page: 2 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nthat he has been convicted of an aggravated felony (indecency with a child,\n§ 21.11(a)(1) of the Texas Penal Code), but he seeks an adjustment of status\nunder § 245(a), such that he might avoid removal. See id. § 1255(a). The\nimmigration judge rejected this request, finding that Silva-Trevino’s offense\nqualified as a crime involving moral turpitude, thus rendering him\ninadmissible and ineligible for discretionary relief. See id. § 1182(a)(2)(A)(i).\n After the Board vacated the decision, the Attorney General certified the\ncase for review, as permitted by 8 C.F.R § 1003.1. In the resulting opinion, the\nAttorney General outlined a new method for determining whether an alien has\nbeen convicted of a crime involving moral turpitude. Matter of Silva-Trevino,\n24 I. & N. Dec. 687 (A.G. 2008). This method, contrary to our precedent, allows\na judge to consider “evidence beyond the formal record of conviction” to the\nextent the judge deems “necessary and appropriate.” Id. at 699. The Attorney\nGeneral also held that where a conviction record indicates “intentional sexual\ncontact with a minor,” immigration judges should look for evidence that the\nalien “knew or should have known” that the victim was, in fact, a minor. Id.\nat 705.\n On remand from the Attorney General, the Board sent the case back to\nthe immigration judge, who applied the new rule, using Silva-Trevino’s\nstipulations, testimony, and the victim’s birth certificate to conclude that Silva-\nTrevino should have known the victim was a minor. This extrinsic evidence,\ncombined with the record of conviction, was sufficient for the judge to find that\nSilva-Trevino had been convicted of a crime involving moral turpitude. The\nBoard affirmed.\n\n\n\n 2\n\f Case: 11-60464 Document: 00512517048 Page: 3 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\n Silva-Trevino now seeks review of the decision, arguing that the\nAttorney General’s method of classification is inconsistent with binding\nprecedent and contradicts the express language of the INA. In the alternative,\nhe contends that the method violates due process as applied to his case. Silva-\nTrevino also asks us to compel the Attorney General to supplement the record.\nHowever, as Silva-Trevino has not identified any specific omission from the\nrecord, or pointed to any relevant legal authority, he has waived this argument.\nFED. R. APP. P. 28(a)(9)(A), (a)(10).\n II.\n The INA affords this Court jurisdiction to review orders of removal. 8\nU.S.C. § 1252(b). We review questions of law de novo. Rodriguez-Castro v.\nGonzales, 427 F.3d 316, 320 (5th Cir. 2005). The instant case requires us to\ndecide whether the Attorney General’s interpretation of the INA supersedes\nthis Circuit’s longstanding precedent. Where a statute is ambiguous, and an\nimplementing agency’s construction is reasonable, “Chevron requires a federal\ncourt to accept the agency’s construction of the statute, even if the agency’s\nreading differs from what the court believes is the best statutory\ninterpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,\n545 U.S. 967, 980 (2005) (citing Chevron, U.S.A., Inc. v. Natural Res. Def.\nCouncil, Inc., 467 U.S. 837 (1984)). Therefore, because Congress has clearly\ndelegated to the Attorney General the authority to resolve questions of law\nregarding the INA, our precedent will prevail over his interpretation only if\nour construction “follows from the unambiguous terms of the statute and thus\nleaves no room for agency discretion.” Brand X, 545 U.S. at 982; see also 8\nU.S.C. § 1103(a)(1) (delegating interpretive authority to the Attorney General).\n\n 3\n\f Case: 11-60464 Document: 00512517048 Page: 4 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\n III.\n In relevant part, § 212(a)(2)(A)(i) of the INA renders inadmissible “any\nalien convicted of, or who admits having committed, or who admits committing\nacts which constitute the essential elements of a crime involving moral\nturpitude.” 8 U.S.C. § 1182(a)(2)(A)(i). As a consequence of this\ninadmissibility, the removable alien is ineligible for discretionary relief via an\nadjustment of status. 8 U.S.C. § 1255(a). Here, Silva-Trevino was denied relief\nbecause the conviction record, when paired with extrinsic evidence, indicated\nthat he had been convicted of a crime involving moral turpitude. The Attorney\nGeneral does not argue that Silva-Trevino has admitted to any such crime or\nact. We therefore limit our analysis to the “convicted of” clause of\n§ 212(a)(2)(A)(i).\n We should emphasize that the question before this Court is not whether\nSilva-Trevino’s offense constitutes a crime involving moral turpitude. Rather,\nwe consider only the means by which judges may determine whether a given\nconviction qualifies. We have long held that, in making this determination,\njudges may consider only “the inherent nature of the crime, as defined in the\nstatute,” or, in the case of divisible statutes, “the alien’s record of conviction.”\nAmouzadeh v. Winfrey, 467 F.3d 451, 455 (5th Cir. 2006) (internal quotation\nmarks and citations omitted); U.S. ex rel. McKenzie v. Savoretti, 200 F.2d 546,\n548 (1952). We do not permit extrinsic inquiry into the “circumstances\nsurrounding the particular transgression.” Amouzadeh, 467 F.3d at 455.\n In reviewing Silva-Trevino’s case, however, the Attorney General\nestablished a new approach that requires immigration judges and the Board\nto:\n\n 4\n\f Case: 11-60464 Document: 00512517048 Page: 5 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\n (1) look to the statute of conviction under the categorical inquiry\n and determine whether there is a “realistic probability” that the\n State or Federal criminal statute pursuant to which the alien was\n convicted would be applied to reach conduct that does not involve\n moral turpitude; (2) if the categorical inquiry does not resolve the\n question, engage in a modified categorical inquiry and examine the\n record of conviction, including documents such as the indictment,\n the judgment of conviction, jury instructions, a signed guilty plea,\n and the plea transcript; and (3) if the record of conviction is\n inconclusive, consider any additional evidence deemed necessary or\n appropriate to resolve accurately the moral turpitude question.\n\n24 I. & N. Dec. at 704 (emphasis added). Today we must determine whether\nthe relevant clause of INA § 212 is sufficiently ambiguous such that our\nprecedent yields to the third step in this method. We need not address the first\ntwo steps. Although this is a matter of first impression for us, six of our sister\ncircuits have already reached the issue. Two concluded that the phrase is\nambiguous, while the other four found that it is not. 1 We agree with the\nmajority of our sister circuits that the phrase is not ambiguous.\n Fortunately, we need not speculate as to what is meant by the phrase\n“convicted of” a crime of moral turpitude, because Congress had the foresight\n\n\n 1 The Third, Fourth, Ninth, and Eleventh Circuits found the language unambiguous\nand thus withheld deference. See generally Olivas-Motta v. Holder, 716 F.3d 1199 (9th Cir.\n2013); Prudencio v. Holder, 669 F.3d 472 (4th Cir. 2012); Fajardo v. U.S. Attorney General,\n659 F.3d 1303 (11th Cir. 2011); Jean-Louis v. Attorney General of U.S., 582 F.3d 462 (3d Cir.\n2009). The Seventh Circuit, however, has afforded the decision deference under Chevron,\n467 U.S. 837 (1984). See Ali v. Mukasey, 521 F.3d 737, 739 (7th Cir. 2008) (“[A]s the board\nhas done this through formal adjudication[,] the agency is entitled to the respect afforded by\nthe Chevron doctrine.”). The Eighth Circuit initially rejected the Silva-Trevino approach, but\na later panel held that the opinion warrants deference. Compare Guardado-Garcia v. Holder,\n615 F.3d 900, 902 (8th Cir. 2010) (“We are bound by our circuit’s precedent, and to the extent\nSilva-Trevino is inconsistent, we adhere to circuit law.”), with Bobadilla v. Holder, 679 F.3d\n1052, 1057 (8th Cir. 2012) (“We conclude that the methodology is a reasonable interpretation\nof the statute and therefore must be given deference by a reviewing court.”).\n 5\n\f Case: 11-60464 Document: 00512517048 Page: 6 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nto tell us. The statutory definitions indicate that “conviction means, with\nrespect to an alien, a formal judgment of guilt . . . .” 8 U.S.C. § 1101(48)(A).\nThe statute then includes a list of the seven official documents that may be\nconsidered as proof of such a conviction. Id. § 1229a(c)(3)(B). There is no\nmention of any additional evidence; and the introductory phrasing, “any of the\nfollowing documents or records,” gives no indication that extrinsic evidence is\ncontemplated. Id.\n We do not doubt that extrinsic inquiry would be relevant and convenient\nwhen classifying convictions. However, it would be a little odd to read this\nprovision as allowing additional relevant evidence when, historically, Congress\nhas simply told us when adjudicators can consider evidence on account of its\nrelevance. 2 In fact, this very statute stipulates that the immigration judge\n“shall consider any credible evidence” relevant to the removal of victims of\nfamily violence. 8 U.S.C. § 1227(a)(7)(B). Yet with respect to the convictions\nat issue here, there is no such authorization. “Where Congress includes\nparticular language in one section of a statute but omits it in another section\nof the same Act, it is generally presumed that Congress acts intentionally and\npurposely in the disparate inclusion or exclusion.” Russello v. United States,\n464 U.S. 16, 23 (1983). Consequently, we assume that if Congress had\nintended for immigration judges to consider relevant extrinsic evidence in\n\n\n\n\n 2 E.g., 28 U.S.C. § 1867(d) (Moving party “shall be entitled to present . . . any other\nrelevant evidence.”); 30 U.S.C. § 923(b) (“[A]ll relevant evidence shall be considered.”); 42\nU.S.C. § 610(b)(2) (“[T]he Board shall conduct a thorough review of the issues and take into\naccount all relevant evidence.”); 15 U.S.C. § 6603(g)(3) (allowing courts and administrative\nofficials to consider “other relevant evidence”).\n 6\n\f Case: 11-60464 Document: 00512517048 Page: 7 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\norder to classify a conviction as a crime of moral turpitude, the legislators\nwould have included language to that effect.\n Moreover, the Supreme Court has already explained that, where\nCongress directs courts to determine whether a prior conviction qualifies as a\ncertain type of crime, the use of a categorical approach is intended. Taylor v.\nUnited States, 495 U.S. 575 (1990). In Taylor, the Court considered whether,\nwhen determining if prior offenses constitute previous convictions for the\npurposes of 18 U.S.C. § 924(e), adjudicators may consider “the particular facts\nunderlying those convictions.” Id. at 600. The Court held that adjudicators\nmay not look beyond the record and associated statutory elements, reasoning\nthat:\n [T]he language of 924(e) generally supports the inference that\n Congress intended the sentencing court to look only to the fact that\n the defendant had been convicted of crimes falling within certain\n categories, and not to the facts underlying the prior convictions.\n Section 924(e)(1) refers to “a person who . . . has three previous\n convictions” for - not a person who has committed - three previous\n violent felonies or drug offenses.\nId. In the case before the panel, the relevant statutory language directs us to\nlook for a conviction, rather than an act committed, so use of a categorical\napproach is implied.\n In interpreting the language at issue in Taylor, that Court also looked to\nthe traditional judicial construction of the phrase, and to recent amendments\nto the statute. Id. at 600–01. Here, legislative ratification of the longstanding,\nnearly universal use of the categorical inquiry confirms that Congress has\nunambiguously spoken to this issue. The categorical approach has been used\n\n\n\n 7\n\f Case: 11-60464 Document: 00512517048 Page: 8 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nin the immigration context for at least a century. 3 By 1954 its use was so\nwidespread that the Board clarified and endorsed the method. 4 Since then, the\nBoard and all of the federal courts have used some version of the categorical or\nmodified categorical inquiry. 5 This widespread continuous use is significant\nfor our purposes because, where there exists a longstanding judicial\nconstruction, “Congress is presumed to be aware of the interpretation . . . and\nto adopt that interpretation [if] it re-enacts that statute without change.”\nLorillard v. Pons, 434 U.S. 575, 580 (1978). It hardly seems unreasonable to\nabide by this assumption here, as Congress has had numerous opportunities\nto make any desired changes. 6 In fact, in the wake of the Oklahoma City\nbombing, and again after 9/11, Congress amended § 212 to ensure its efficacy. 7\n\n\n 3 Moncrieffe v. Holder, --- U.S. ----, 133 S. Ct. 1678, 1685 (2013) (referring to the history\nas compiled by Alina Das in The Immigration Penalties of Criminal Convictions: Resurrecting\nCategorical Analysis in Immigration Law, 86 N.Y.U. L. REV. 1669 (2011)).\n 4 Matter of R-----, 6 I. & N. Dec. 444, 448 (B.I.A. 1954).\n 5 See Matter of Velazquez-Herrera, 24 I. &. N. Dec. 503, 513 (B.I.A. 2008) (“For nearly\n\na century, the Federal circuit courts of appeals have held that where a ground of deportability\nis premised on the existence of a ‘conviction’ for a particular type of crime, the focus of the\nimmigration authorities must be on the crime of which the alien was convicted, to the\nexclusion of any other criminal or morally reprehensible acts he may have committed.”). For\nthe purpose of resolving the present issue, it is not necessary to consider the minor variations\nin the way that various federal courts have articulated and employed the categorical\napproach. See Jean-Louis, 582 F.3d at 474 n.16 (collecting cases and describing similarities).\n 6 See 8 U.S.C.A. § 1182 Historical and Statutory Notes (West 2005) (listing dozens of\n\namendments to § 212 of the INA).\n 7 Section 212 of the INA was substantively amended by The Antiterrorism and\n\nEffective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996)\n(codified as amended in scattered sections of the U.S. Code); The Illegal Immigration Reform\nand Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-\n546 (1996) (codified as amended in scattered sections of the U.S. Code); and USA PATRIOT\nAct, Pub. L. No. 107-56, 115 Stat. 272 (2001) (codifed as amended in scattered sections of the\nU.S. Code). As the threat of terrorism increased, so did legislative attention to deportation\nproceedings. See President’s Statement on Signing the Antiterrorism and Effective Death\nPenalty Act of 1996, 32 Weekly Comp. of Pres. Doc. 719, 721 (Apr. 29, 1996) (discussing\nthreats of terrorism, encouraging additional immigration reform, and anticipating IIRIRA);\n 8\n\f Case: 11-60464 Document: 00512517048 Page: 9 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nIn 1996, Congress expanded the agency’s power to remove aliens convicted of\ncrimes involving moral turpitude. 8 In addition, lawmakers expedited certain\ndeportation proceedings and later increased the number of grounds for\ninadmissibility. 9 In light of such extensive attention to the statute, it seems\nthat Congress would have given some indication if it wanted adjudicators to\n“abandon” the longstanding categorical approach in favor of an “elaborate\nfactfinding process.” Taylor, 495 U.S. at 601. And yet the relevant language\nremained unchanged. 10 As a consequence, and because the lawmakers have\nrevisited the section so often, we are confident that Congress is aware of the\nuniversal judicial interpretation of the “convicted of” clause of § 212, and we\ncan assume that Congress expects us to abide by that construction. Lorillard,\n434 U.S. at 583. Where, as here, Congress has spoken directly to the statutory\nquestion at hand, our precedent need not yield to an agency’s contrary\ninterpretation. Burks v. U.S., 633 F.3d 347, 360 (5th Cir. 2011).\n IV.\n Nonetheless, the Attorney General urges this Court to defer to his\ninterpretation of § 212(a)(2)(A)(i). First, he argues that the statutory language\nis ambiguous. Second, he contends that the Supreme Court and our precedent\n\n\n\nAdministration’s Draft Anti-Terrorism Act of 2001: Hearing before the H. Comm. on the\nJudiciary, 107th Cong. 3–12 (2001) (statement of John Ashcroft, Att’y Gen. of the United\nStates) (explaining the (then unnamed) USA PATRIOT Act, and the need for changes to\ndeportation and inadmissibility proceedings).\n 8 AEDPA § 435, 110 Stat. 1274.\n 9 IIRIRA §§ 301–08, 110 Stat. 3009-575 et seq.; USA PATRIOT Act § 411, 115 Stat.\n\n345.\n 10 In fact, the only recent bill attempting to supersede categorical inquiry was\n\nabandoned in the Senate Judiciary Committee. See Armed Career Criminal Sentencing Act\nof 2010, S. 4045, 111st Cong. (2010) (proposing to supersede its use in the context of the\nArmed Career Criminal Act, 18 U.S.C. 924(e)).\n 9\n\f Case: 11-60464 Document: 00512517048 Page: 10 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nalready authorize immigration judges to look beyond the conviction record\nwhen making similar determinations. Finally, he insists that various practical\nconsiderations weigh in favor of his method. We find the arguments\nunpersuasive.\n In arguing that “convicted of a crime involving moral turpitude” is\nambiguous, the Attorney General focuses on the inherent lack of clarity in the\nconcept of moral turpitude. He observes, for example, that “[t]he statute does\nnot define the term ‘crime involving moral turpitude.’” 24 I. & N. Dec. at 693.\nIndeed, no one suggests otherwise. This Court, in fact, has always recognized\nthe agency’s authority to define the phrase. See Hyder v. Keisler, 506 F.3d 388,\n390 (5th Cir. 2007) (affording “substantial deference”). Yet the lack of a precise\ndefinition of moral turpitude does not infuse ambiguity into the word\nconviction. As our sister circuits have observed, “At issue . . . is not what\nconduct or statutory offense qualifies as a crime involving moral turpitude, but\nrather what language in the moral turpitude statute informs an adjudicator of\nthe procedure for determining whether a particular conviction qualifies . . . .”\nOlivas-Motta, 716 F.3d at 1204 (quoting Prudencio, 669 F.3d at 480). And even\nin the Eighth Circuit case the Attorney General points to as support for the\npurported ambiguity, the majority of the panel concluded that moral turpitude\nnot is so undefined as to preclude a categorical inquiry. Marciano v. I.N.S.,\n450 F.2d 1022, 1025 (8th Cir. 1971).\n The Attorney General also asserts that section 212’s juxtaposition of the\nphrase “who is convicted of” with the phrases “who admits having committed”\nand “who admits committing” suggests that Congress wants adjudicators to\nfocus on the facts and circumstances of the underlying crime. 8 U.S.C.\n\n 10\n\f Case: 11-60464 Document: 00512517048 Page: 11 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\n§ 1182(a)(2)(a)(i). The three phrases taken together, he contends, “contemplate\na finding that the particular alien did or did not commit a crime.” 24 I. & N.\nDec. at 699. The argument is, apparently, that because the latter two phrases\nanticipate an examination of facts and circumstances, Congress must have\nintended such an inquiry with respect to convictions, too. We respectfully\ndisagree. It is an elementary canon of construction that when Congress uses\ndifferent terms, “each term [is] to have a particular, nonsuperfluous meaning.”\nBailey v. United States, 516 U.S. 137, 146 (1995) (superseded by statutory\namendment on other grounds, as described in United States v. O’Brien, 560\nU.S. 218 (2010)). For example, where a statute refers to firearms “used” and\nthose “intended to be used,” the latter phrase does not anticipate active\nengagement in the way the former term does, because to interpret otherwise\nwould create redundancy. Id. Similarly, in this context, to assume that\n“convicted” connotes the same procedure as “committed” is to strip the word of\nits statutory definition and render it superfluous. We cannot accept such an\ninterpretation. The juxtaposition does not infuse any ambiguity into the\n“convicted of” clause, but only serves to underscore the distinct meaning of that\nphrase.\n We are aware that two binding cases permit the adjudicator to look\nbeyond the conviction record in ostensibly analogous proceedings. See\nNijhawan v. Holder, 557 U.S. 29 (2009); Bianco v. Holder, 624 F.3d 265 (5th\nCir. 2010). In Nijhawan, the Supreme Court allowed evidence beyond the\nrecord in determining whether an alien had been convicted of an “offense that\ninvolves fraud or deceit in which the loss to the victim or victims exceeds\n$10,000.” 557 U.S. at 32 (interpreting 8 U.S.C. § 1101(a)(43)(M)(i)). In Bianco,\n\n 11\n\f Case: 11-60464 Document: 00512517048 Page: 12 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nthis Court permitted an examination of extrinsic evidence in order to\ndetermine whether an alien had been convicted of a “crime of domestic\nviolence.” 624 F.3d at 267 (interpreting 8 U.S.C. § 1227(a)(2)(E)(i)). The\nAttorney General believes that Nijhawan and Bianco bear on the analysis of\nthis case because each of the three cases requires courts to determine whether\na given conviction falls into a statutorily defined category of convictions.\n We find the statutory language before us readily distinguishable from\nthe language at issue in Nijhawan and Bianco. Note that the language in each\nof the earlier two cases describes a subset of a category of convictions, rather\nthan an entire category. As a consequence, relevant convictions can only be\nidentified by looking to the circumstances that define the subset. Consider\nthat in Nijhawan, the category is crimes of fraud and deceit, and the subset is\nthose resulting in a loss of at least $10,000 to the victim. Likewise, in Bianco,\nthe category is crimes of violence as defined by 18 U.S.C. § 16, and the subset\nis crimes of violence in which the victim is a covered relative. By creating these\nfactually defined subsets, Congress necessarily authorizes adjudicators to look\nbeyond a conviction record to the circumstances of an underlying\noffense. Nijhawan, 557 U.S. at 30. Yet the statute at issue here defines no\nsuch subset: qualifying offenses are all crimes involving moral turpitude, as\nthat generic crime has been defined by federal authorities and common\nlaw. Consequently, we find no analogous permission to abandon the\ncategorical approach and look beyond the conviction record. See Moncrieffe,\n133 S. Ct. at 1691 (explaining that “circumstance-specific examination” of\nconduct is not permitted in determining whether an immigrant was convicted\nof a generic crime).\n\n 12\n\f Case: 11-60464 Document: 00512517048 Page: 13 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\n It is, of course, possible to argue that that moral turpitude is simply\nanother factual circumstance that defines a subset. See Ali, 521 F.3d at\n741. Yet to conceive of moral turpitude in this way is to disregard a century of\njurisprudence, despite the fact that courts generally interpret terms of art in\nkeeping with “the legal tradition and meaning” and “cluster of ideas . . .\nattached” to the phrase. Morissette v. United States, 342 U.S. 246, 263 (1952);\nsee also Olivas-Motta, 716 F.3d at 1205–08 (finding Nijhawan inapplicable to\nINA § 212); Jean-Louis, 582 F.3d at 477–78 (explaining that it is historically,\nlinguistically, and legally erroneous to think of moral turpitude as a factual\ncircumstance). Consequently, and because the statutory language in\nNijhawan and Bianco is distinguishable from the relevant clause in § 212, we\ndecline the invitation to apply the reasoning in those cases to the case at bar.\n The Attorney General also offers various policy justifications for his\nproposed method of classifying convictions. He first asserts that additional\nevidence must be made available because moral turpitude is not an element of\nany crime, and thus its presence or absence may not be clear from the face of\ncharging documents. We do not find this argument convincing. The fact that\nmoral turpitude is not an element of any crime need not—and in fact does not—\nimply that the characteristics of a crime involving moral turpitude are not\npresent on the conviction record made available by Congress. Consider, for\nexample, that larceny may not be an “element” of any crime in Texas; yet the\nelements of common law larceny (the taking and carrying away of another’s\nproperty without consent and with intent to steal) are elements of several\noffenses defined by chapters 29 and 31 of the Texas Penal Code. So just as the\ncharacteristics of larceny are evinced by an examination of a charge of\n\n 13\n\f Case: 11-60464 Document: 00512517048 Page: 14 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\naggravated robbery under § 29.03 of the Texas Penal Code; so, too, are the\nhallmarks of a crime involving moral turpitude often present on the face of a\nconviction record. In fact, the Attorney General himself concedes that “in\nmany, if not most, cases . . . examination of the alien’s record of conviction may\nestablish that the alien was in fact convicted of a crime involving moral\nturpitude.” Silva-Trevino, 24 I. & N. Dec. at 699. We have no reason to doubt\nhis observation, and we conclude that any exceptions are not sufficient cause\nfor us to depart from the procedure authorized by the statutory language. See\nMCI Telecomms. Corp. v. AT&T Co., 512 U.S. 218, 233–34 (1994) (rejecting an\nagency interpretation inconsistent with unambiguous statute, though the\nagency’s interpretation might have better facilitated legislative intent).\n The Attorney General further contends that we should defer to his\ninterpretation of § 212(a)(2)(A)(i) because he is charged with ensuring uniform\napplication of the law. This argument is, if anything, a little ironic. Until he\nintervened in Silva-Trevino, there was broad consensus among the federal\ncourts that the “convicted of” language precludes consideration of evidence\nbeyond the conviction record. See supra, note 5. So at least with respect to the\nadmissibility of evidence, there was uniform application of the law. Yet now\nthe circuits have split, with some Courts of Appeals using the new method, and\nothers abiding by longstanding precedent. So it seems that his interpretation\nhas been counterproductive toward his own stated objective, in that the prior\njurisprudential accord has been replaced by competing interpretations.\nRegardless, these kinds of arguments—i.e., those rooted in policy and\npragmatism—are only viable where Congress has not spoken directly to the\nstatutory question before the court. Here, as already explained, Congress has\n\n 14\n\f Case: 11-60464 Document: 00512517048 Page: 15 Date Filed: 01/30/2014\n\n\n\n\n No. 11-60464\nspoken directly to the issue, so our inquiry has reached its end. FDA v. Brown\n& Williamson Tobacco Corp., 529 U.S. 120, 132 (2000).\n V.\n Returning to the case before us, we find that the Board of Immigration\nAppeals looked beyond the conviction record to conclude that Silva-Trevino had\nbeen convicted of a crime involving moral turpitude. Our precedent does not\npermit such an inquiry. Amouzadeh, 467 F.3d at 455. We therefore vacate the\ndecision of the Board and remand for further proceedings consistent with the\nstandards stated herein. As a consequence, we need not reach petitioner’s\nargument that the earlier proceedings violated due process.\n Petition GRANTED, decision VACATED, and case REMANDED.\n\n\n\n\n 15\n\f", "ocr": false, "opinion_id": 2651967 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
2,638,728
Edmonds, Presiding Judge, and Armstrong and Kistler, Judges
2000-10-04
false
harris-v-pameco-corp
Harris
Harris v. Pameco Corp.
Mark Steven HARRIS, Appellant, v. PAMECO CORPORATION, a Delaware Corporation, Dba Pameco-Aire, and Wally George, Respondents
Ellen Rosenblum, Judge (Supplemental Judgment)., Adam Dean argued the cause for appellant. On the briefs were Des Connall, Shannon K. Connall, and Des & Shannon Connall, LLP., Corbett Gordon argued the cause for respondent Pameco Corporation. With her on the brief were Richard R. Meneghello, and Corbett Gordon & Associates, P.C., Robert Lane Carey argued the cause for respondent Wally George. With him on the brief was Barran Liebman, LLP.
null
null
null
null
null
null
null
Argued and submitted January 27,
null
null
25
Published
null
<otherdate id="b196-2"> Argued and submitted January 27, </otherdate><decisiondate id="AI"> reversed and remanded in part; otherwise affirmed October 4, 2000 </decisiondate><br><parties id="b196-3"> Mark Steven HARRIS, <em> Appellant, v. </em> PAMECO CORPORATION, a Delaware corporation, dba Pameco-Aire, and Wally George, <em> Respondents. </em> </parties><br><docketnumber id="b196-8"> (9405-03305; CA A92496) </docketnumber><br><citation id="b196-9"> 12 P3d 524 </citation><br><attorneys id="b198-16"> <span citation-index="1" class="star-pagination" label="165-a"> *165-a </span> Ellen Rosenblum, Judge (Supplemental Judgment). </attorneys><br><attorneys id="b198-17"> Adam Dean argued the cause for appellant. On the briefs were Des Connall, Shannon K. Connall, and Des &amp; Shannon Connall, LLP. </attorneys><br><attorneys id="b198-18"> Corbett Gordon argued the cause for respondent Pameco Corporation. With her on the brief were Richard R. Meneghello, and Corbett Gordon &amp; Associates, P.C. </attorneys><br><attorneys id="b199-3"> <span citation-index="1" class="star-pagination" label="165-b"> *165-b </span> Robert Lane Carey argued the cause for respondent Wally George. With him on the brief was Barran Liebman, LLP. </attorneys><br><judges id="b199-4"> Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges. </judges><br><judges id="b199-5"> EDMONDS, P. J. </judges>
[ "12 P.3d 524", "170 Or. App. 164" ]
[ { "author_str": "Edmonds", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n12 P.3d 524 (2000)\n170 Or. App. 164\nMark Steven HARRIS, Appellant,\nv.\nPAMECO CORPORATION, a Delaware corporation, dba Pameco-Aire, and\nWally George, Respondents.\n(9405-03305; CA A92496)\nCourt of Appeals of Oregon.\nArgued and Submitted January 27, 2000.\nDecided October 4, 2000.\n*526 Adam Dean, Portland, argued the cause for appellant. On the briefs were Des Connall, Shannon K. Connall, and Des &amp; Shannon Connall, LLP.\nCorbett Gordon, Portland, argued the cause for respondent Pameco Corporation. With her on the brief were Richard R. Meneghello, and Corbett Gordon &amp; Associates, P.C.\nRobert Lane Carey, Portland, argued the cause for respondent Wally George. With him on the brief was Barran Liebman, LLP.\nBefore EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.\nEDMONDS, P.J.\nPlaintiff appeals from a judgment entered after the trial court granted directed verdicts in defendants' favor at the close of plaintiff's case and at the close of all the evidence on certain claims in his amended complaint. ORCP 60. He assigns error to the trial court's dismissal of his claims for battery, intentional infliction of emotional distress, negligence and employment discrimination under ORS 659.030(1)(b). The directed verdicts were appropriate only if defendants were entitled to judgment as a matter of law. Lindstrand v. Transamerica Title Ins. Co., 127 Or.App. 693, 695, 874 P.2d 82 (1994). We reverse, in part.\nIn determining whether the trial court erred, we view the evidence in the light most *527 favorable to plaintiff and extend to him the benefit of every reasonable inference that could be drawn from the evidence. Foster v. Schnell Refrigeration Co., 280 Or. 411, 414, 571 P.2d 497 (1977). In that light, we state the facts. Plaintiff worked for defendant Pameco as a branch manager. Defendant Wally George supervised plaintiff as part of George's duties as regional manager for Pameco. Plaintiff and George interacted on a regular basis at plaintiff's workplace and at off-site Pameco meetings. George had an intimidating supervisory style. He often expressed anger by raising his voice, throwing his hands in the air and threatening employees with termination. At the same time, he would express greetings or goodbyes to his employees by saying \"hugs and kisses\" and would often touch the male employees by rubbing their necks or putting his arm around them.\nAt some point before the alleged conduct at issue in this case, plaintiff discussed with George his views on homosexuality. He testified that he made it clear to George that he believed \"that the act of homosexuality * * * is not something that's conducive to good family values nor good morals within our society, and * * * that the act of * * * homosexuality deteriorates a society[.]\" In January 1993, plaintiff and George attended a Pameco meeting in Las Vegas. One night after an awards ceremony, George threw his arm around plaintiff as they walked through the casino. Plaintiff testified that this contact left him with mixed feelings. The next morning, plaintiff went to George's room at George's invitation. George answered the door in boxer shorts. Five to ten minutes into the conversation, George got into bed and pulled the sheets up over his stomach and asked plaintiff why plaintiff \"didn't * * * just get in bed.\" Plaintiff testified that he left immediately, feeling confused. After arriving home, he spoke to family members about the incident.\nIn the following months, George touched plaintiff while at work on several other occasions. On one occasion, plaintiff described:\n\"I was standing with a few managers outside the office and Mr. George put his arm—he came out of his office, put his arm around me, and we turned, and he said, I want to talk to you.\n\"And he was up close to me and he was massaging my neck as we were walking toward the back door of the warehouse. And we got back to the back door of the warehouse, and I nudged him and I said, come on, Wally, and I kind of moved to a—you know, we were side by side and then I kind of moved to the side to talk to him face to face.\n\"And as we were walking through the warehouse, I was close enough to him that when I turned to him and he turned to me talking to me, our faces were very close.\"\nPlaintiff testified that he found the incident offensive because defendant \"was holding me like I would hold my wife.\" Another contact occurred at plaintiff's desk when George sat down next to plaintiff so that their knees were, or were almost touching. Plaintiff testified and demonstrated to the jury how \"[George] took his hand and he placed it on the inside of my left leg with his palm about on my—you know where that round thing is on your knee? His palm was right there and his fingers were up my thigh.\" Plaintiff moved his knee quickly away because he found the touch offensive, and he testified that the incident angered him. In mid-August 1993, plaintiff and George met to discuss the sales numbers for plaintiff's branch. George responded to plaintiff's report by telling plaintiff: \"Well, if you do over $350,000, I'll give you a big wet kiss and tongue.\"\nPlaintiff testified that he became depressed as a result of George's conduct.[1] He contacted some organizations that he thought could answer his questions about the incidents. Later, this exchange took place in February 1994 at another company meeting. Plaintiff testified:\n\"[A]s I passed by Mr. George * * * Mr. George said, `How are you doing?' And I said, `Fine, how are you doing?' And he said, `Well, I have got a bad cold.['] And I *528 said, `Well, I better not get too close.' And he said to me, `Does that mean I cannot invite you to my bed?'\"\nIn May 1994, plaintiff filed this action related to the above conduct against George and Pameco after his employment had ended with Pameco. Plaintiff's amended complaint contains six claims for relief, some of which involve claims against Pameco and George individually and others which involve allegations as to both defendants. In his first claim, plaintiff alleges that George committed a battery by touching him on the shoulder, neck and thigh. In his second and third claims, plaintiff alleges that George intentionally inflicted emotional distress on him by subjecting him to sexual advances, comments and conduct. In his first, second and third claims, plaintiff also alleges that Pameco committed battery and intentionally inflicted emotional distress on him. The trial court directed verdicts on all of those claims at the close of plaintiff's case. In his fourth claim plaintiff alleges that he was wrongfully discharged under the common law because Pameco terminated him in retaliation for complaining about George's sexual harassment. The jury returned a verdict for Pameco on that claim, and plaintiff does not assign the jury's verdict as error on appeal. In his fifth claim, plaintiff alleges that Pameco was negligent in several particulars, including \"in creating, encouraging and maintaining an intimidating and hostile work environment[.]\" The trial court directed a verdict on all of the other allegations of negligence at the close of plaintiff's case and on that specific allegation at the close of all the evidence in favor of Pameco. Lastly, plaintiff's amended complaint alleges that Pameco discriminated against plaintiff in violation of ORS 659.030(1)(b) and 659.030(1)(f). The gravamen of those claims are that the company, knowing of George's sexual harassment, failed to take remedial steps and/or discharged plaintiff for complaining about George's conduct. At the close of plaintiff's case, the trial court granted Pameco's motion for a directed verdict on plaintiff's claim under ORS 659.030(1)(b). Likewise, at the close of all the evidence, the trial court granted Pameco's motion for a directed verdict on plaintiff's claim under ORS 659.030(1)(f). After trial, the court awarded costs to both defendants and attorney fees to Pameco.\nOn appeal, plaintiff makes nine separate assignments of error. Two of those assignments refer to the trial court's grant of directed verdicts on plaintiff's claims for battery and intentional infliction of emotional distress (IIED) against George. Two other assignments refer to the trial court's grant of directed verdicts on those same claims against Pameco. In addition, plaintiff assigns as error the dismissal of his negligence claim as well as the dismissal of his claim for discrimination under ORS 659.030. The remaining assignments of error relate to the trial court's awards of costs and attorney fees. Because of our disposition on the other assignments, those awards are vacated, and we do not reach the parties' arguments about them.\n\nI. THE BATTERY AND IIED CLAIMS\nThe trial court directed verdicts on the battery and IIED claims because\n\"a reasonable jury made up of individuals would be unable to conclude that the acts as alleged and as testified to, without challenge at this point in the case, taken in the light most favorable to the plaintiff, do not amount to outrageous conduct in the extreme, do not exceed or are not an extraordinary transgression of the bounds of socially tolerable conduct, that no jury could find that.\"\nA \"battery\" is a \"voluntary act that is intended to cause the resulting harmful or offensive contact.\" Walthers v. Gossett, 148 Or.App. 548, 552, 941 P.2d 575 (1997). \"It is not necessary that the contact do actual physical harm—it is sufficient if the contact is offensive or insulting. Prosser, Law of Torts 36, § 9 (4th ed 1971).\" Bakker v. Baza'r, Inc., 275 Or. 245, 249, 551 P.2d 1269 (1976). George argues that \"no reasonable jury could have concluded that [he] caused harmful or offensive contact or intended to cause such contact\" by the manner in which he touched plaintiff. Specifically, he contends that plaintiff is hyper-sensitive to physical contact between males and that each instance of touching was nothing more than *529 ordinary social contact. Also, George asserts that he \"did not know, and could not have known, that plaintiff would be offended by these instances of non-threatening touching.\" We disagree that the jury would have been required to reach those findings on the basis of the evidence outlined above. It is also inferable from plaintiff's testimony that George's touching was sexual in nature in light of plaintiff's previously expressed views about homosexuality and his reactions when touched. It is also inferable that George knew that his conduct would be considered objectively offensive when considered in the context of his course of conduct. The trial court erred in taking plaintiff's claim for battery against George away from the jury.\nTo prove the elements of an IIED claim, plaintiff must prove (1) an intent by George to inflict severe emotional distress on plaintiff, (2) that George's acts caused plaintiff severe emotional distress and (3) that George's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995). George argues that \"no reasonable jury could have concluded that [his] alleged conduct was sufficiently outrageous to be actionable or that [he] intended to inflict severe emotional distress on plaintiff.\" In response, plaintiff argues that he introduced evidence of a continuing course of unwelcome touching of intimate parts of his body and sexual and hostile comments by George to him that spanned over a year. He asserts that the outrageousness of the conduct is further supported by the fact that defendant George began directing his harassing conduct at plaintiff only after he found out that plaintiff believed that type of behavior and conduct to be offensive and to be contrary to plaintiff's religious and moral values. Those facts, according to plaintiff, would allow a jury to find that George intended to inflict emotional distress on him, or, alternatively, that George was substantially certain that emotional distress would result from his conduct.\nThere is evidence from which a jury could properly infer that George intended to inflict severe emotional distress on plaintiff. A jury could find that George was aware of plaintiff's views on homosexuality and undertook to cause him to become emotionally distressed by subjecting him to unconsented to and unwanted physical touching. That is a reasonable inference in light of George's other comments to plaintiff and the fact that the conduct began after George became aware of plaintiff's views on homosexual behavior. Also, the multiple instances of contact and innuendos could demonstrate that George's conduct was not an isolated pattern of boorish behavior but a concerted effort to harass plaintiff. In that light, a jury could reasonably conclude that the first element of an IIED claim had been satisfied.\nWhether conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law. As we explained in Whelan v. Albertson's, Inc., 129 Or.App. 501, 505-06, 879 P.2d 888 (1994):\n\"Our inquiry * * * begins with an analysis of those cases where statements have been held to be socially intolerable and those where statements were held to be merely rude. We have held that racial and ethnic slurs can be socially intolerable. Lathrope-Olson v. Dept. of Transportation, 128 Or.App. 405, 408, 876 P.2d 345 (1994). Language used to sexually harass, such as `all women were good for was between their legs,' has also been deemed socially intolerable. 128 Or.App. at 408, 876 P.2d 345. In contrast, unfounded, private accusations of lying and sabotage were characterized as rude and boorish, but not actionable. Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or.App. 234, 828 P.2d 479, rev. den., 314 Or. 176, 836 P.2d 1345 (1992). Here, the insults directed at plaintiff were sexual in nature and resemble the socially intolerable sexual references in Lathrope-Olson v. Dept. of Transportation, supra.\n\n\"If the content of statements alone is not dispositive, we also consider the context and repetition of the insults, in determining whether the statements were socially intolerable.\n\"`The invitation to a woman to illicit intercourse, insufficient in itself [to be actionable], *530 becomes extreme outrage when it is prolonged and repeated to the point of hounding, and accompanied by advertising in the form of indecent pictures or exposure.' Prosser, Torts § 11 at 48, 49 (3d ed 1964). Quoted in Pakos v. Clark, 253 Or. 113, 126, 453 P.2d 682 (1969).\"\nIn addition, we may consider the existence of a special relationship, including an employer and employee relationship, between the parties in determining the bounds of socially tolerable conduct. MacCrone v. Edwards Center, Inc., 160 Or.App. 91, 100, 980 P.2d 1156 (1999). On this record, a jury could find that George's physical contact with plaintiff in conjunction with his statements to plaintiff constituted a course of sexual harassment and, therefore, socially intolerable conduct. We conclude that plaintiff presented sufficient evidence to establish the elements of IIED and that the trial court erred in dismissing his IIED claim against George.\nPlaintiff proceeds on two alternative theories regarding his battery and intentional infliction of emotional distress claims against Pameco. First, plaintiff appears to argue that there is sufficient evidence for the jury to find that Pameco directed George's conduct. In Walthers, we explained that\n\"a corporation can be directly liable for intentional torts where: (1) the tort is committed by a person or persons wielding `the whole executive power of the corporation'; and (2) the tortious acts were committed `in behalf of the corporation.'\" 148 Or.App. at 556, 941 P.2d 575 (citing to Bingham v. Lipman, 40 Or. 363, 365, 67 P. 98 (1901)).\nAlthough plaintiff introduced some evidence of sexual innuendos in a company newsletter and managerial skit, there is no evidence that Pameco directed that George sexually harass plaintiff. Plaintiff's first theory fails for lack of proof.\nIn the alternative, plaintiff argues that evidence in the record would permit a jury to find that Pameco is vicariously liable for George's conduct. In order to withstand a motion for a directed verdict on the issue of vicarious liability, plaintiff must have presented sufficient evidence that George's acts fell within the course and scope of his employment. Chesterman v. Barmon, 305 Or. 439, 442-43, 753 P.2d 404 (1988). The proper inquiries are:\n\"(1) whether the act occurred substantially within the time and space limits authorized by the employment; (2) whether the employee was motivated, at least partially, by a purpose to serve the employer; and (3) whether the act is of a kind which the employee was hired to perform.\" Id. at 442, 753 P.2d 404.\nUnder the Supreme Court's holding in Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), and Lourim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999), the focus is not on whether George acted in Pameco's interest or whether George was hired to sexually harass plaintiff. Rather, the focus is whether the acts complained of resulted from or were the outgrowth of the exercise of George's employment duties. A jury could find that George's conduct occurred while he was supervising plaintiff; thus, plaintiff's evidence suffices to meet these requirements. We conclude that the trial court erred in directing verdicts in favor of Pameco on plaintiff's battery and IIED claims on the theory of vicarious liability.\n\nII. THE NEGLIGENCE CLAIMS\nPlaintiff's complaint alleges that:\n\"Defendant Pameco was negligent in one or more of the following particulars:\n\"(a) In creating, encouraging and maintaining an intimidating and hostile work environment;\n\"(b) In encouraging and allowing acts of sexual harassment upon employees;\n\"(c) In failing to adequately train defendant George in matters relating to sexual harassment;\n\"(d) In failing to adequately supervise, reprimand and discipline defendant George;\n\"(e) In failing to disseminate a written sexual harassment policy and educate Pameco employees regarding matters pertaining to sexual harassment;\n\n*531 \"(f) In failing to enforce a sexual harassment policy; and\n\"(g) In failing to properly investigate the various sexual harassment complaints about defendant George.\"\nPameco argued to the trial court that plaintiff's negligence claim was precluded under the Workers' Compensation Act's exclusivity provision. ORS 656.018(1)(a).[2] Plaintiff relies on the exception to the exclusivity provision found in ORS 656.018(3)(a) (1993) that provides:\n\"The exemption from liability given an employer under this section is also extended to the employer's insurer, the self-insured employer's claims administrator, the department, and the contracted agents, employees, officers and directors of the employer, the employer's insurer, the self-insured employer's claims administrator and the department, except that the exemption from liability shall not apply:\n\"(a) Where the injury is proximately caused by willful and unprovoked aggression by the person otherwise exempt under this subsection[.]\"\nAs the trial court indicated, plaintiff cannot use the statutory exception in ORS 656.018(3) for \"willful\" acts to support a \"negligence\" claim against Pameco. See Virgil v. Walker, 280 Or. 607, 611-12, 572 P.2d 314 (1977) (holding that the term willful in the statute means \"deliberately and intentionally\"). On appeal, plaintiff reasserts a similar argument, relying on our holding in Palmer v. Bi-Mart Company, 92 Or.App. 470, 758 P.2d 888 (1988). However, that case is inapposite because it too involved deliberate and intentional conduct. The trial court did not err in directing a verdict on the negligence claims.\n\nIII. THE STATUTORY CLAIMS\nFinally, plaintiff assigns error to the trial court's grant of Pameco's motion for a directed verdict on plaintiff's claim under ORS 659.030 (1993). That statute provided, in relevant part:\n\"(1) For the purposes of ORS 659.010 to 659.110, 659.227, 659.330, 659.340, 659.400 to 659.460 and 659.505 to 659.545, it is an unlawful employment practice:\n\"* * * * *\n\"(b) For an employer, because of an individual's race, religion, color, sex, national origin, marital status or age if the individual is 18 years of age or older, or because of the race, religion, color, sex, national origin, marital status or age of any other person with whom the individual associates, or because of a juvenile record, that has been expunged pursuant to ORS 419A.260 and 419A.262, of any individual, to discriminate against such individual in compensation or in terms, conditions or privileges of employment.\n\"* * * * *\n\"(f) For any employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because the person has opposed any practices forbidden by this section, ORS 30.670, 30.685, 659.033 and 659.400 to 659.460, or because the person has filed a complaint, testified or assisted in any proceeding under ORS 659.010 to 659.110, 659.400 to 659.460 and 659.505 to 659.545 or has attempted to do so.\"[3]\nThe statutory claims were tried to the trial court. At the close of plaintiff's case, the trial court granted Pameco's motion for a directed verdict on plaintiff's claim under *532 ORS 659.030(1)(b). At the close of all the evidence, the trial court granted Pameco's motion for a directed verdict on plaintiff's claim under ORS 659.030(1)(f). Apparently, the trial court ruled that George's conduct was not related to plaintiff's gender as a matter of law. The trial court explained:\n\"I don't see any tie-in to any activity that I've heard [of] because of Mr. Harris' sex[.]\n\"* * * * *\n\"* * * I don't believe that—first of all, I don't believe that there was discrimination in this sense, but I further don't believe that there is discrimination because of Mr. Harris being a man or anything else. I mean, there just wasn't. There's no discrimination against Mr. Harris in terms of compensation that I can see. That claim comes up when you and I have the same experience, [defense counsel]. We apply for the job and I get promoted and you don't.\"\nWe are not persuaded by the trial court's analysis.[4] The grant of a directed verdict under ORCP 60 means that, as a matter of law, no reasonable fact finder could draw the inferences alleged by the plaintiff. As we have previously indicated, the record is susceptible to a reasonable inference that George undertook to sexually harass plaintiff.\nOn the issue of Pameco's liability for George's conduct under the statute, both parties recognize that because ORS 659.030 was modeled after Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. § 2000E et seq., federal cases interpreting Title VII are instructive. See Mains v. II Morrow, Inc., 128 Or.App. 625, 634, 877 P.2d 88 (1994). In Mains, the court considered when, under ORS 659.030, an employer could be liable for a supervisor's actions towards an employee:\n\"The federal courts acknowledge that sexual harassment may take different forms. Those courts generally follow two methodologies in analyzing such cases. In `quid pro quo' cases, the employer is liable if it links employment benefits to the acceptance or rejection of sexual favors. The employer is strictly liable if the supervisor uses the employee's acceptance or rejection of sexual favors as a quid pro quo for job benefits. * * *.\n\"The second methodology permits recovery for a sexually `hostile environment.' Meritor Savings Bank v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986), says:\n\"`For sexual harassment to be actionable, it must be sufficiently severe or pervasive \"to alter the conditions of [the victim's] employment and create an abusive working environment.\"'\n\"* * * In applying this methodology, the Court has not adopted a precise standard for determining an employer's liability for a supervisor's conduct, but has applied only general agency principles. However, the lower federal courts have developed a somewhat clearer rule. In Steele v. Offshore Shipbuilding, Inc., [867 F.2d 1311, 1316, (11th Cir.) reh'g denied 874 F.2d 821 (1989)] the court held that when the plaintiff claims that a co-worker created a hostile environment through sexual harassment, the employer is liable if the employer `knew or should have known of the harassment and failed to take prompt remedial action against the supervisor.' * * * The Oregon Supreme Court quoted this federal standard, without comment, in Holien v. Sears, Roebuck and Co., 298 Or. 76, 89, 689 P.2d 1292 (1984). We follow that standard here.\" 128 Or.App. at 634-35, 877 P.2d 88 (footnotes and some internal citations omitted); see also Fred Meyer, Inc. v. BOLI, 152 Or.App. 302, 309, 954 P.2d 804 (1998) (applying a \"totality of the circumstances\" test to determine what constitutes an \"intimidating, hostile or offensive working environment\").\nIn this case, plaintiff argues that he presented sufficient evidence to support his claims under ORS 659.030(1)(b) that (1) George's sexual harassment of him was severe and pervasive enough to alter the conditions of his employment and create an abusive environment; and, (2) that Pameco knew or should have known of the specific conduct *533 of which plaintiff complains. In response, Pameco argues that\n\"[it] is not liable for the actions of one of its supervisors because the Company took reasonable steps to prevent sexual harassment and plaintiff unreasonably failed to utilize remedial measures available to him. Even if Pameco could be liable for these actions, when viewed in the social context in which the alleged harassment took place, the actions could not be considered offensive to a reasonable person.\"\nWe hold that, should a fact finder believe plaintiff's version of the events, it could also find that George's conduct created an intimidating, hostile and offensive working environment. The more difficult issue is whether there is evidence that Pameco knew of or should have known of the harassment and failed to take prompt remedial action against George. There is evidence that other branch managers and plaintiff's branch employees witnessed at least some of the conduct or comments. However, there is no evidence that anyone witnessed George's invitation to plaintiff in Las Vegas or the alleged placement of his hand on plaintiff's thigh. Until March 31, 1994, plaintiff did not complain about George's conduct to any of George's superiors at Pameco, although plaintiff could have contacted those individuals. On one occasion in December of 1993, plaintiff discussed with George's superior his opposition to a decision that George had made that affected plaintiff's branch without mentioning George's harassing conduct. Within days after receiving plaintiff's complaint about George's harassment of him, Pameco sent two of its human resources personnel to investigate plaintiff's complaint along with two complaints that plaintiff had forwarded from two other branch employees about George's conduct towards them. When Pameco's investigators arrived, plaintiff refused to talk to them without his attorney present. The Pameco representatives became angry with plaintiff's refusal to speak with them and terminated him on April 5, less than a week after receiving his complaint. The only evidence is that Pameco promptly investigated, once it became aware of plaintiff's complaint. It follows that, on this record, Pameco took the remedial action available to it during the time that plaintiff was employed. Accordingly, the trial court did not err in dismissing plaintiff's claim under ORS 659.030(1)(b). However, that conclusion does not foreclose the possibility that plaintiff made a sufficient record to survive a motion for a directed verdict on his claim for retaliatory discharge under ORS 659.030(1)(f).[5]\nORS 659.030(1)(f) (1993) makes it an unlawful employment practice for \"any employer * * * to discharge * * * any person because the person has opposed any practices forbidden by this section[.]\" In order to withstand a motion for directed verdict, plaintiff must have introduced evidence that demonstrates that he was discharged by Pameco for opposing George's sexual harassment. Under the statute, it is not necessary that he prove liability under subsection (b); evidence that he opposed \"practices\" forbidden by the statute is sufficient.\nPameco does not argue on appeal that the trial court should have granted a directed verdict on the ground that the only evidence is that Pameco fired plaintiff because of his lack of cooperation with its investigation. Rather, Pameco argues that subsection (b) does not prohibit same gender harassment for sexual purposes. It follows, according to Pameco, that plaintiff's claim is not cognizable because he has failed to show discrimination because of his sex. Oregon appellate courts have not ruled on this issue so far as we can determine. However, the United States Supreme Court has considered that question under Title VII, and, as we stated before, Title VII law is instructive in interpreting ORS 659.030.\nIn Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998), the male plaintiff had filed a complaint alleging that he was discriminated against in his employment by other male employees, including supervisors, because of his sex. The trial court granted the *534 defendant company's summary judgment motion, holding that the plaintiff had no cause of action under Title VII for same gender sexual harassment. Oncale, 523 U.S. at 77, 118 S. Ct. 998. Because the Court's opinion to the contrary directly addresses the issue present in this case, we set it forth at length:\n\"If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination `because of ... sex' merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex.\n\"Courts have had little trouble with that principle in cases like Johnson [v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987) ], where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a `hostile environment' sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e.g., Goluszek v. H.P. Smith, 697 F. Supp. 1452 (N.D.Ill.1988). Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (C.A.4 1996)[, cert. den. 519 U.S. 819, 117 S. Ct. 72, 136 L.Ed.2d 32(1996)], with Wrightson v. Pizza Hut of America, 99 F.3d 138 (C.A.4 1996). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations. See Doe v. Belleville, 119 F.3d 563 (C.A.7 1997)[, cert. granted and judgment vacated for further reconsideration in light of Oncale 523 U.S. 75, 118 S.Ct 998, 140 L. Ed. 2d 201 (1998) ].\n\"We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits `discriminat[ion] ... because of ... sex' in the `terms' or `conditions' of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.\n\"* * * We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. `The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.' Harris [v. Forklift Systems, Inc., 510 U.S. 17, 25, 114 S. Ct. 367, 372, 126 L. Ed. 2d 295 (1993) ] (GINSBURG, J., concurring).\n\"Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer direct comparative evidence about *535 how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted `discrimina[tion]... because of ... sex.'\" Id. at 79-81.\nThe Oncale Court's plain-language analysis of Title VII (the same language found in ORS 659.030(1)(b)) informs our analysis of the issue in this case. There is nothing in the language of ORS 659.030(1)(b) that bars a claim of discrimination because the sexual harassment is aimed at a person of the same gender. Consistent with the language of the statute, plaintiff continues to have the burden of persuading the fact finder that he suffered discrimination because of his sex. However, that is a question of fact, not of law.\nAdditionally, Pameco argues that \"[i]f this court determines that U.S. Supreme Court authority should be followed in the same-sex harassment regard, it should likewise apply the U.S. Supreme Court's test for vicarious liability adopted by the Oregon Bureau of Labor and Industries.\" As discussed above, the Oregon Supreme Court has established the test for vicarious liability in Chesterman. Pameco has not asserted that the language of ORS 659.030 or any other related statute requires, or permits, the application of a different test, nor has Pameco directed us to any such language. Consequently, we decline to apply any other standard in this context. In conclusion, we hold that the trial court erred in directing a verdict on plaintiff's ORS 659.030(1)(f) claim on the grounds argued by Pameco.\nJudgment for defendants on plaintiff's claims for battery, intentional infliction of emotional distress and discrimination under ORS 659.030(1)(f) reversed and remanded; otherwise affirmed.\nNOTES\n[1] On appeal, defendants do not controvert plaintiff's contention that he suffered severe emotional distress. There is sufficient evidence in the record for a jury to find that plaintiff suffered from depression following these incidents.\n[2] ORS 656.018(1)(a) provides:\n\n\"The liability of every employer who satisfies the duty required by ORS 656.017(1) is exclusive and in place of all other liability arising out of injuries, diseases, symptom complexes or similar conditions arising out of and in the course of employment that are sustained by subject workers, the workers' beneficiaries and anyone otherwise entitled to recover damages from the employer on account of such conditions or claims resulting therefrom, specifically including claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such conditions, except as specifically provided otherwise in this chapter.\"\nAlthough ORS chapter 656 has been amended after the events at issue in this case, none of the changes affects our analysis or conclusions.\n[3] ORS 659.121(1) (1993) provides that \"[a]ny person claiming to be aggrieved by an unlawful employment practice prohibited by * * * [ORS] 659.030 * * * may file a civil suit in circuit court[.]\"\n[4] Had the court ruled as a matter of fact that there was no sexual harassment of plaintiff after weighing the competing evidence on that issue, our standard of review would be different.\n[5] We do not decide what preclusive effect, if any, the jury's verdict on the common-law discharge claim has on plaintiff's statutory claim because the parties have not raised that issue.\n\n", "ocr": false, "opinion_id": 2638728 } ]
Court of Appeals of Oregon
Court of Appeals of Oregon
SA
Oregon, OR
1,519,963
Dally, Roberts
1979-10-03
false
green-v-state
Green
Green v. State
Randy Glenn GREEN, Appellant, v. the STATE of Texas, Appellee
Kenneth Valka, on appeal only, Houston, for appellant., Carol S. Vance, Dist. Atty., Michael C. Kuhn, Doug Shaver and Tenny G. Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State.
null
null
null
null
null
null
null
null
null
null
19
Published
null
<parties id="b203-3"> Randy Glenn GREEN, Appellant, v. The STATE of Texas, Appellee. </parties><br><docketnumber id="b203-6"> No. 61914. </docketnumber><br><court id="b203-7"> Court of Criminal Appeals of Texas, En Banc. </court><br><decisiondate id="b203-9"> Oct. 3, 1979. </decisiondate><br><attorneys id="b204-7"> <span citation-index="1" class="star-pagination" label="168"> *168 </span> Kenneth Valka, on appeal only, Houston, for appellant. </attorneys><br><attorneys id="b204-8"> Carol S. Vance, Dist. Atty., Michael C. Kuhn, Doug Shaver and Tenny G. Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State’s Atty., Austin, for the State. </attorneys>
[ "587 S.W.2d 167" ]
[ { "author_str": "Dally", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5748, "opinion_text": "\n587 S.W.2d 167 (1979)\nRandy Glenn GREEN, Appellant,\nv.\nThe STATE of Texas, Appellee.\nNo. 61914.\nCourt of Criminal Appeals of Texas, En Banc.\nOctober 3, 1979.\n*168 Kenneth Valka, on appeal only, Houston, for appellant.\nCarol S. Vance, Dist. Atty., Michael C. Kuhn, Doug Shaver and Tenny G. Wilson, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.\nBefore the court en banc.\n\nOPINION\nDALLY, Judge.\nThis is an appeal from a conviction for the offense of capital murder. The punishment was assessed at death.\nAppellant complains of the admission at the punishment stage of testimony concerning an extraneous offense and opinion testimony concerning appellant's character. He also contends that the arguments of counsel at the guilt-innocence stage were improperly presented prior to the reading of the court's charge to the jury, and the prosecutor violated appellant's right to remain silent by commenting on his failure to call certain witnesses.\nThe evidence, which includes appellant's written confession, establishes that on the night of June 28, 1976, appellant robbed and fatally beat Harold Robinson, the owner of a tavern in Baytown. During the same criminal episode, appellant raped and severely beat a female employee of the tavern.\nOn November 5, 1976, appellant entered a plea of guilty in the circuit court of Yazoo County, Mississippi, to the offense of the murder of Beverly Clark on July 31, 1976. He was sentenced to imprisonment for life in the Mississippi Department of Corrections.\nAt the punishment stage of appellant's trial, the State called as a witness William Jennings, a Yazoo County deputy sheriff. Appellant contends that the trial court erred in permitting Jennings to testify as follows:\n\"Q. Can you tell the members of the jury where you found the body of Beverly Ann Morris Clark?\n\"A. In a shallow ditch in Beach Hill Estates, Yazoo County.\n\"Q. What time on August 1st did you find her body?\n\"A. 4:15 p. m.\n\"Q. Can you tell the members of the jury what age Beverly Ann Morris Clark was?\n\"A. Eighteen.\n\"Q. What was she wearing, if anything?\n\"A. Nothing.\n\"Q. How was her body positioned when you first found it?\n\"A. She was laying face up in the ditch.\n\"Q. What injuries were evident or obvious to you when you found the body of the deceased, Beverly Ann Morris Clark?\n\"MR. BARNETT: If your Honor please, we object to that. He can't say who put the injuries there. We don't think a description of this body has anything to do with this particular case. We think it's irrelevant and immaterial and being offered solely and only in prejudicing the jurors against this defendant.\n\"THE COURT: That objection is overruled.\n\"Q. (By Mr. Wilson) Deputy Jennings, could you tell the members of this jury what injuries you saw on the person of the deceased, Beverly Ann Morris Clark?\n\"A. The upper part of her body and head were dark, discolored, blue. *169 The eyes were bugged out and her tongue was swelled out. There was blood and several holes across the upper part of her chest.\"\nPrior to this testimony, during voir dire examination of Jennings outside the presence of the jury, the trial court had sustained appellant's objection to the introduction of photographs of Clark's body, but overruled his objection to a verbal description of the body. This earlier objection was substantially the same as the objection voiced during Jennings' testimony before the jury.\nWhile appellant does not question the admissibility of the Mississippi offense, he contends that it was improper to permit the State to show the details of the offense, citing Lege v. State, 501 S.W.2d 880 (Tex. Cr.App.1973) and Mullins v. State, 492 S.W.2d 277 (Tex.Cr.App.1973). These cases involved the application of Art. 37.07, Sec. 3, V.A.C.C.P. Under Art. 37.071(a), V.A.C. C.P., which does apply to capital cases, the trial court is given wide discretion in admitting and excluding evidence at the punishment stage insofar as the relevance of the evidence is concerned. Porter v. State, 578 S.W.2d 742 (Tex.Cr.App.1979). The trial did not abuse its discretion by admitting evidence that appellant had committed a similar murder approximately one month after the charged offense. Wilder v. State, 583 S.W.2d 349 (Tex.Cr.App.1979); Garcia v. State, 581 S.W.2d 168 (Tex.Cr.App.1979); Hammett v. State, 578 S.W.2d 699 (Tex.Cr. App.1979); Gholson v. State, 542 S.W.2d 395 (Tex.Cr.App.1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). It was within the court's discretion to refuse to admit the photographs but to admit the testimony.\nAppellant contends that Jennings should not have been permitted to testify because the police reports on which his testimony was based were not made available to the defense, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Appellant asserts that these reports would have contained information tending to impeach Jennings' testimony.\nAt the pretrial hearing on appellant's discovery motion, the trial court refused to order the immediate disclosure of the Mississippi police reports but ordered the State to have the reports available for inspection during the trial should they become material. Appellant expressed his satisfaction with this arrangement. The record reflects that appellant did not subsequently ask to examine and to use for cross-examination the police reports referred to by Jennings during his testimony, and did not object to his testimony on this ground. In the absence of a request by appellant to examine the police reports, constitutional error is presented only if there is a showing that undisclosed evidence exists which creates a reasonable doubt that did not otherwise exist. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Villarreal v. State, 576 S.W.2d 51 (Tex.Cr.App.1978). Appellant has made no such showing, nor is there any support in the record for his contention that the State suppressed the police reports. This ground of error is overruled.\nFollowing his arrest in Mississippi, appellant was admitted to the Mississippi State Hospital at Whitfield for observation and testing. Two of the doctors who examined appellant during his six-week stay in the hospital were Donald Guild, Director of Forensic Psychiatry at the hospital, and Charlton Stanley, a staff psychologist. At the punishment stage, Guild and Stanley were questioned extensively concerning the opinions they had formed as a result of their examination of appellant. Among other things, both doctors testified that appellant was without psychosis and competent to stand trial, but that he had an anti-social or psychopathic personality. The doctors also testified, contrary to appellant's defensive contention, that appellant's conduct on the night of the Houston murder was not precipitated by his habitual heavy use of alcohol and that his conduct was deliberate. Both doctors stated that, in their opinion, it was probable that appellant would commit acts of violence in the future and be a continuing threat to society.\nAppellant contends that the trial court erred in permitting Guild and Stanley to *170 testify because the State refused to make available to the defense the records and reports on which the two doctors based their testimony, again citing Brady v. Maryland, supra. However, at no time did appellant object to Guild's testimony on this ground. Appellant did raise this point in an objection during Stanley's testimony, but the objection was directed to a specific question which was withdrawn by the State and which the jury was instructed to disregard.\nMoreover, the record does not sustain appellant's contention that the defense was denied access to the psychiatric reports. During his cross-examination of Stanley, appellant's defense counsel asked for and was given the records from which Stanley testified, and a recess was taken in order to give counsel time to examine them. Stanley was cross-examined extensively from these records, and testified that they were the same records used by Guild in his earlier testimony. Appellant did not ask that Guild be recalled for further cross-examination. Appellant's contention is without support in the record and is overruled.\nAppellant also contends that Jennings, Guild, and Stanley should not have been permitted to testify because their names did not appear on the State's list of witnesses. Again, appellant did not raise this objection in the trial court. Moreover, appellant neither requested that the witness list be included in the record nor objected to the record because of its exclusion. Nothing is presented for review.\nAppellant contends that the trial court erred by permitting the arguments of counsel to be made prior to the reading of the charge. Art. 36.14, V.A.C.C.P. This contention is not supported by the record. The following entry appears on the docket sheet for November 14, 1977:\n\"Trial resumed at 1:05 P.M.... Court's charge having been prepared and presented to counsel for both sides on Friday, November 11, 1977, was filed; no objections or exceptions to the charge were filed; at 1:25 P.M. charge was read to jury and each side was granted 45 minutes for argument; State waived opening and reserved right to close; defense argument began at 1:40 P.M. and concluded at 2:15 P.M. State's argument began at 2:15 P.M. and concluded at 2:24 P.M. Jury retired to deliberate at 2:25 P.M....\"\nThis ground of error is overruled.\nAppellant's final contention is that the prosecuting attorney commented on appellant's failure to testify when he argued:\n\"Let me not also forget to tell you that the defense has subpoena powers in this case. They could have brought forth witnesses had they desired. Let me refer you to and got back to this confession and those names mentioned. They could have brought those in if those men had something different to say.\"\nThis was a comment on appellant's failure to call available witnesses, not on his failure to personally testify. See Lyles v. State, 582 S.W.2d 138 (Tex.Cr.App.1979). In addition, appellant did not object to this statement, and the error, if any, was not preserved. Earnhart v. State, 582 S.W.2d 444 (Tex.Cr.App.1979).\nThe judgment is affirmed.\nROBERTS, J., not participating.\n", "ocr": false, "opinion_id": 1519963 } ]
Court of Criminal Appeals of Texas
Court of Criminal Appeals of Texas
SA
Texas, TX
1,737,169
Grimes
1983-10-21
false
clark-v-jw-conner-sons-inc
null
Clark v. JW Conner & Sons, Inc.
null
null
null
null
null
null
null
null
null
null
null
null
3
Published
null
null
[ "441 So. 2d 674" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4038, "opinion_text": "\n441 So. 2d 674 (1983)\nEarnest CLARK and Katherine Clark, His Wife, Appellants,\nv.\nJ.W. CONNER &amp; SONS, INC., and Aetna Casualty &amp; Surety Co., Appellees.\nNo. 82-2620.\nDistrict Court of Appeal of Florida, Second District.\nOctober 21, 1983.\nRehearing Granted in Part and Denied in Part December 7, 1983.\n*675 Joel D. Eaton of Podhurst, Orseck, Parks, Josefsberg, Eaton, Meadow &amp; Olin, P.A., Miami, and Beckham &amp; McAliley, P.A., Jacksonville, for appellants.\nMichael A. Tonelli of Barr, Murman &amp; Tonelli, P.A., Tampa, for appellees.\nGRIMES, Acting Chief Judge.\nThis appeal involves the assessment of damages resulting from a trespass on land.\nMr. and Mrs. Clark (Clarks) owned approximately eight acres of undeveloped real property in Hillsborough County. In 1979 J.W. Conner &amp; Sons, Inc. (Conner), a road contractor, was engaged nearby in the construction of the Crosstown Expressway. An owner of land which adjoined the Clarks' property gave Conner permission to build a road across his property in order to reach a borrow pit. By mistake Conner built the access road across three acres of the Clarks' property. Though the Clarks were aware of this activity in 1979, they did not realize that the road crossed their property until 1981 when they obtained a survey. At this point, the Clarks gave Conner's employees a copy of the survey and ordered them off the property. After a week Conner ceased using the road.\nThe Clarks brought suit against Conner and its insurer for compensatory and punitive damages occasioned by the trespass. Prior to trial the court ruled that the measure of compensatory damages would be the difference between the value of the land before the harm and the value after the harm. Notwithstanding, at trial the Clarks did not present any evidence of the before and after values of the land. They did, however, introduce evidence that to remove the large piles of trees and debris from the land would cost $8,514 and that to fill in the property and restore it to its original grade would cost $24,084. The court refused to permit the Clarks to introduce evidence of the value of the trees which were destroyed on the land.[1] To protect the record the *676 Clarks proffered the testimony of a landscape architect that the value of the destroyed trees was $85,144.21.[2] At the close of the Clarks' case, the court granted Conner's motion for directed verdict on punitive damages. Upon Conner's motion, the court also limited the Clarks' claims for compensatory damages to the cost of removing the debris from the land. At this point the parties agreed to the entry of a judgment against Conner and its insurer for the $8,514 cleanup expenses without prejudice to the Clarks' right to appeal the court's ruling on the other elements of damage.\nAs a general rule the measure of damages in Florida for permanent injury to land is the difference between the value of the land before and after the injury. Atlantic Coast Line Railroad v. Saffold, 130 Fla. 598, 178 So. 288 (1938); Standard Oil Co. v. Dunagan, 171 So. 2d 622 (Fla. 3d DCA 1965). This measure of damages has been applied to the removal of soil, United States Steel Corp. v. Benefield, 352 So. 2d 892 (Fla. 2d DCA 1977), cert. denied, 364 So. 2d 881 (Fla. 1978), as well as the severing of trees, National Rating Bureau v. Florida Power Corp., 94 So. 2d 809 (Fla. 1956). Where the reduction in market value is an inadequate measure, recovery has been allowed for losses personal to the owner. Fiske v. Moczik, 329 So. 2d 35 (Fla. 2d DCA 1976). In Fiske we permitted a recovery of the replacement value of palm trees improperly removed from the owner's residence. Likewise, the court in Elowsky v. Gulf Power Co., 172 So. 2d 643 (Fla. 1st DCA 1965), approved damages in excess of the loss of market value when a power company cut down a tree next to the plaintiff's home. In these cases, a judgment for the difference in market value would not have adequately compensated the owners for the intangible losses they suffered from the destruction of trees near their homes.\nThe Clarks seek to come within the rationale of Fiske and Elowsky by pointing to evidence that they had always intended to build residential duplexes on the property and had already hired an architect and a surveyor for this purpose when Conner's trespass came to light. We do not believe that this is the kind of personal interest in land which would authorize the recovery of replacement value.[3]See Nilsson v. Hiscox, 158 So. 2d 799 (Fla. 1st DCA 1964). The Clarks' reliance on Watson v. Jones, 160 Fla. 819, 36 So. 2d 788 (1948), is misplaced. In Watson the defendant improperly cut ninety-seven pine trees on property the plaintiff intended to use for a tourist and trailer park. In the course of upholding a $2,500 judgment, the supreme court quoted from a Wisconsin case which had permitted a homeowner to recover the replacement value of lost shade trees. While the Watson opinion mentioned the importance of the severed trees to the plaintiff's intended use of the land, the basis for the $2,500 recovery was the depreciation in market value. Thus, the value of the trees for *677 ornament and shade suitable for a tourist and trailer park bore on market value to the extent that when the trees were cut the value of the land suffered greater depreciation.\nThe existence of the trees on the Clarks' land no doubt enhanced its value. Thus, the severing of these trees certainly caused a substantial reduction in market value. Yet, despite the trial judge's pretrial announcement concerning the proper measure of damages, the Clarks introduced no evidence whatsoever concerning the value of the land before and after the trespass. Therefore, when Conner moved for a directed verdict, the Clarks had failed to prove damages according to the established rule. Realizing that the Clarks had, in fact, incurred some damages, the court denied Conner's motion to the extent of permitting the jury to consider the cost of removing the debris. Even this element of damages should have been recovered as a part of the loss of market value. However, Conner consented to the entry of a judgment against it for the cost of removing the debris and has not cross-appealed this ruling. The Clarks cannot obtain additional damages because they failed to carry their burden of proof.\nUpon review of the record, we also find that the court properly directed a verdict for Conner on the issue of punitive damages. The trespass went on for two years before anyone realized that Conner was actually on the Clarks' property. When Mr. Clark finally obtained a survey and thereby discovered the trespass, he told some of Conner's truck drivers that they were travelling on his property, and he posted a no trespassing sign on the road. Later that day he gave a copy of the survey to a Conner executive who said he would check out the matter. The sign was knocked down, and the drivers continued to use the road for one week. At this point Conner removed its equipment and closed down the road. There was insufficient evidence of malice to raise a jury issue. See Florida Power Corp. v. Scudder, 350 So. 2d 106 (Fla. 2d DCA 1977), cert. denied, 362 So. 2d 1056 (Fla. 1978), appeal dismissed, 439 U.S. 922, 99 S. Ct. 303, 58 L. Ed. 2d 315 (1978).\nAFFIRMED.\nSCHEB and RYDER, JJ., concur.\nNOTES\n[1] In declining to allow the Clarks to calculate their damages on a tree-by-tree basis, the judge observed:\n\nTHE COURT: I really heard enough, now we need to move on. It's clear to me that — that the approach of the Plaintiff, which is to take — cannot be permitted. The land is admittedly unimproved, at least I believe it is from everything I've been told in this case, simply an unimproved piece of land, non-residential. And the trees simply are growing on it in some haphazard fashion that nature has a way of doing. And that your approach would be so economically preposterous in my opinion to make two acres — two acres of land, I haven't asked you what the value of the land is, but I think anybody would know the approximate range of what that land is worth down there, to turn that into an eighty to one hundred thousand dollar damages in my opinion is just preposterous and simply an effort to overkill, that's not compensation, that's — that such an approach does not even remotely relate to reasonable compensation for unimproved land in this county.\n[2] On appeal the Clarks suggest that their landscape architect was giving his opinion of the cost to replace each of the destroyed trees. Leaving aside the feasibility of replacing mature oak trees, we read his testimony as placing a value on each tree as one might do in establishing a freeze damage casualty loss for income tax purposes. In view of our disposition of the case, it makes no difference whose version of the testimony is correct.\n[3] Restatement of Torts § 929(a)i comment b (1939), pertaining to harm to land from past invasions, includes a discussion of when an owner has such a personal interest in his land that he ought to be entitled to recover the cost of restoration even when it is disproportionate to the diminution of market value.\n\n", "ocr": false, "opinion_id": 1737169 } ]
District Court of Appeal of Florida
District Court of Appeal of Florida
SA
Florida, FL
2,169,019
Colleen Kollar-Kotelly
2011-05-24
false
herrion-v-childrens-hospital-natl-medical-center
Herrion
Herrion v. Children'S Hospital Natl. Medical Center
Eric HERRION, Plaintiff, v. CHILDREN’S HOSPITAL NATIONAL MEDICAL CENTER, Et Al., Defendants
Gregory L. Lattimer, Law Offices of Gregory L. Lattimer, PLLC, Washington, DC, for Plaintiff., Jodi Y. Terranova, Wilson Elser Moskowitz Edelman & Dicker, LLP, Washington, DC, for Defendants.
null
null
null
null
null
null
null
null
null
null
12
Published
null
<parties id="b397-4"> Eric HERRION, Plaintiff, v. CHILDREN’S HOSPITAL NATIONAL MEDICAL CENTER, et al., Defendants. </parties><br><docketnumber id="b397-6"> Civil Action No. 10-00254 (CKK). </docketnumber><br><court id="b397-7"> United States District Court, District of Columbia. </court><br><decisiondate id="b397-8"> May 24, 2011. </decisiondate><br><attorneys id="b399-10"> <span citation-index="1" class="star-pagination" label="361"> *361 </span> Gregory L. Lattimer, Law Offices of Gregory L. Lattimer, PLLC, Washington, DC, for Plaintiff. </attorneys><br><attorneys id="b399-11"> Jodi Y. Terranova, Wilson Elser Moskowitz Edelman &amp; Dicker, LLP, Washington, DC, for Defendants. </attorneys>
[ "786 F. Supp. 2d 359" ]
[ { "author_str": "Kollar-Kotelly", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n786 F. Supp. 2d 359 (2011)\nEric HERRION, Plaintiff,\nv.\nCHILDREN'S HOSPITAL NATIONAL MEDICAL CENTER, et al., Defendants.\nCivil Action No. 10-00254 (CKK).\nUnited States District Court, District of Columbia.\nMay 24, 2011.\n*361 Gregory L. Lattimer, Law Offices of Gregory L. Lattimer, PLLC, Washington, DC, for Plaintiff.\nJodi v. Terranova, Wilson Elser Moskowitz Edelman &amp; Dicker, LLP, Washington, DC, for Defendants.\n\nMEMORANDUM OPINION\nCOLLEEN KOLLAR-KOTELLY, District Judge.\nPlaintiff Eric Herrion (\"Herrion\") commenced this action against Children's National Medical Center (\"Children's National\"), sued here under the name Children's Hospital National Medical Center, and three security officers in its employ — Emerson Anderson, Jason Green, and Calvin White (the \"Security Officers\"; together with Children's National, \"Defendants\") — alleging that he was attacked, beaten, and restrained by the Security Officers while visiting his sister at Children's National in September 2007. In his [6] Amended Complaint, Herrion asserts two claims against the Security Officers — each of whom has been commissioned as a special police officer by the Mayor of the District of Columbia[1] — under Section 1 of the Ku Klux Act of 1871, Rev. Stat. § 1979, as amended, 42 U.S.C. § 1983 (\"Section 1983\"), as well as a common law claim for malicious prosecution against both Children's National and the Security Officers. Presently before the Court is Defendants' [7] Motion for Summary Judgment. Invoking the doctrine of res judicata, Defendants argue that Herrion is precluded from seeking any relief in this action in light of a prior action he brought against Children's National in the Superior Court for the District of Columbia. The Court agrees. Therefore, upon a searching review of the parties' submissions, the relevant authorities, and the record as a whole, the Court shall grant Defendants' motion and dismiss this action in its entirety.\n\nI. PRELIMINARY MATTERS\nPreliminarily, the Court pauses to make two overarching observations about the nature of Defendants' motion and Herrion's opposition to that motion.\n*362 First, although styled in the alternative as a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants' motion turns upon consideration of materials that are outside the scope of the pleadings. Indeed, in the course of briefing the motion, both parties effectively treat the motion as one for summary judgment. For his part, Herrion does not suggest either that he has been deprived \"a reasonable opportunity to present all the material that is pertinent to the motion,\" Fed.R.Civ.P. 12(d), or that he \"cannot present facts essential to justify [his] opposition,\" Fed.R.Civ.P. 56(d). Therefore, the Court shall treat the motion solely as one for summary judgment.\nSecond, the United States District Court for the District of Columbia has supplemented Rule 56 of the Federal Rules of Civil Procedure with Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts for which that party contends there is no genuine dispute. The party opposing the motion must, in turn, submit a responsive statement enumerating all material facts which the party contends are genuinely disputed. See LCvR 7(h)(1). Both the moving party's initial statement and the opposing party's responsive statement must be based on \"references to the parts of the record relied on to support the statement.\" Id. This well-reasoned rule \"places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record.\" Jackson v. Finnegan, Henderson, Farabow, Garrett &amp; Dunner, 101 F.3d 145, 151 (D.C.Cir. 1996). In this case, while Herrion has filed a responsive statement, his chosen approach falls short of what is required in two material respects. First, Herrion occasionally responds to factual matters identified by Defendants simply by characterizing them as \"irrelevant and immaterial.\" See Pl.'s Response to Defs.' Alleged Stmt. of Undisputed Material Facts, ECF No. [8], ¶¶ 8, 16, 21-26, 28. Such a response is patently insufficient to controvert the truth of the matters identified. To the extent these matters turn out to be material to the resolution of this motion, Herrion has failed to supply a basis for treating them as controverted. Second, while Herrion suggests that he disputes certain factual matters identified by Defendants, he repeatedly does so without citing to any competent evidence in the record. See id. ¶¶ 10-11, 14, 16. However, a responsive statement must include specific \"references to the parts of the record relied on to support the statement.\"[2] LCvR 7(h)(1). In each of these respects, Herrion has failed to discharge his burden under the Local Rules of this Court. Therefore, in an exercise of its discretion, the Court shall assume that the uncontroverted facts identified by Defendants in their statement are admitted for purposes of resolving the pending motion.\n\nII. BACKGROUND\nThis action turns on events that are alleged to have transpired on September 17, 2007. See Am. Compl., Docket No. [6], ¶ 8. Briefly stated, Herrion alleges that, while he was visiting his sister at Children's National on that date, he was attacked, beaten, and restrained by the *363 Security Officers, who subsequently fabricated a charge of assault against him in order to \"cover up\" their alleged wrongful conduct. See id. ¶¶ 9-10, 22.\n\nA. Herrion Brings Suit in the Superior Court for the District of Columbia\nSignificantly, this is not the first time that Herrion has brought suit in connection with these alleged events. On September 17, 2008, Herrion commenced an action against Children's National in the Superior Court for the District of Columbia (the \"Superior Court action\"). Defs.' Stmt. of Undisputed Material Facts (\"Defs.' Stmt.\"), ECF No. [7], ¶ 1. In that action, Herrion asserted claims against Children's National for assault and battery and false arrest.[3]Id. ¶ 3. Both claims were predicated upon the same sequence of events that allegedly occurred when Herrion went to Children's National to visit his sister on September 17, 2007.\nLike here, the operative allegations in the Superior Court action were as follows:\n• Herrion was asked to leave the room where his sister was receiving treatment;\n• Despite complying with the request, he was followed and harassed as he was leaving the building;\n• Once outside, the Security Officers attacked and restrained him;\n• Herrion was taken inside the building by the Security Officers and held in a room;\n• Herrion was harassed while the police were called to the scene; and\n• The Security Officers provided the police with manufactured evidence concerning the events that transpired.\nDefs.' Stmt. ¶ 5 &amp; Ex. 1 ¶¶ 5-7. In the Superior Court action, Herrion brought suit against Children's National — the only named defendant in that action — on the theory that Children's National was vicariously liable for the acts of the Security Officers in its employ. Id. ¶¶ 5-6 &amp; Ex. 1 ¶¶ 8-9.\nChildren's National answered the complaint and the parties proceeded to conduct discovery. Defs.' Stmt. ¶¶ 7-8. Eleven months before the trial began, Children's National identified the three Security Officers involved in the altercation by name and produced a copy of the security camera footage recording the events that served as the basis for the action. Id. ¶¶ 8-9 &amp; Ex. 4 at 4, 6-8.\nA five-day jury trial began on January 25, 2010. Defs.' Stmt. ¶ 15. The two claims at issue at trial were Herrion's claims for assault and battery and false arrest. Id. Herrion introduced the security camera footage into evidence. Id. ¶ 16. On February 2, 2010, the jury returned a split verdict, finding in favor of Children's National on Herrion's claim for false arrest and in Herrion's favor on his claim for assault and battery. Id. ¶ 17 &amp; Ex. 10 at 1. Herrion was awarded $30,000 in compensatory damages. Id. ¶ 17 &amp; Ex. 10 at 2. The Superior Court entered a final judgment that same day. Id. ¶ 18 &amp; Ex. 11. Children's National's subsequent motions seeking relief from the final judgment have all been denied. Id. ¶¶ 19-20.\n\nB. Herrion Brings Suit in This Court\nOn February 18, 2010, less than two weeks after the jury rendered its verdict in the Superior Court action, Herrion commenced this action, naming both Children's National and the Security Officers as defendants. See Compl., Docket No. [1]. On *364 March 30, 2010, Defendants moved for summary judgment on the ground that the doctrine of res judicata precludes Herrion from securing relief in this action. See Defs.' Mot. for Summ. J., Docket No. [3].\nOn April 19, 2010, Herrion responded by amending his Complaint. See Am. Compl., Docket No. [6]. Like the previous iteration, Herrion's Amended Complaint rests on the same factual underpinning as the Superior Court action — that is, the events that allegedly transpired on September 17, 2007. See id. ¶¶ 8-10, 14. In connection with those alleged events, Herrion asserts three claims in his Amended Complaint: two claims against the Security Officers arising under Section 1983, the first predicated on allegations of excessive force (Count I) and the second predicated on allegations that the Security Officers deliberately made false representations to the Metropolitan Police Department (Count II); and a third claim against both Children's National and the Security Officers for malicious prosecution (Count III). See id. ¶¶ 15-24. In the Amended Complaint, Herrion purports to be suing the Security Officers in both their \"official\" and \"individual\" capacities. See id. ¶¶ 5-7.\nSo far as factual allegations go, the only truly material change in Herrion's Amended Complaint has nothing to do with the underlying conduct at issue. Rather, Herrion sets forth a handful of allegations concerning the Superior Court action itself. He expressly acknowledges that he filed a suit in the Superior Court \"[a]s a result of\" the events of September 17, 2007, that the action \"went to trial,\" and that a \"jury returned a verdict of $30,000 on [his] claim for assault and battery and in favor of [Children's National] on the claim for false arrest.\" Am. Compl. ¶ 11. Apparently by way of explanation for this action, Herrion proceeds to allege that the \"violations of the [his] rights could not be supported with objective evidence nor meet the minimum standard for advancing claims associated with what happened in the security office until two days before the Superior Court trial was scheduled to begin when the puzzle ... was finally solved and its secrets were revealed.\" Id. ¶ 13.\nOn April 27, 2010, the Court denied Defendants' first motion for summary judgment without prejudice to re-file after tailoring it to speak to the Amended Complaint. See Min. Order (Apr. 27, 2010). On May 11, 2010, Defendants filed this motion. See Defs.' Mem. of P. &amp; A. in Supp. of its [sic] Mot. to Dismiss and/or Mot. for Summ. J., ECF No. [7]. On May 25, 2010, Herrion filed an opposition. See Pl.'s Mem. of P. &amp; A. in Opp'n to Defs.' Mot. for Summ. J. (\"Pl.'s Opp'n\"), ECF No. [8]. On June 1, 2010, Defendants filed a reply. See Defs.' Reply to Pl.'s Opp'n to Def.'s [sic] Mot. for Summ. J., ECF No. [9].\nOn April 7, 2011, after reviewing the parties' initial briefing, the Court issued a minute order requesting further clarification as to the nature of Herrion's claims in this action. See Min. Order (Apr. 7, 2011). The Court set forth its understanding that Herrion's two claims against the Security Officers were based on the contention that the Security Officers are liable under Section 1983 for willfully and maliciously beating Herrion and deliberately making false representations to the Metropolitan Police Department in their capacity as security guards in Children's National's employ. See id. The Court directed Herrion to file a notice indicating whether the Court's understanding of his claims was correct and, if appropriate, identifying whether he intended to sue the Security Officers in a different capacity or for additional conduct. See id.\n*365 Purporting to respond to the Court's directive, Herrion filed a \"notice of claims\" on April 14, 2011. See Notice of Pl.'s Claim in Resp. to the Court's Order of April 7, 2011 (\"Pl.'s Notice of Claims\"), ECF No. [10]. Therein, Herrion represented, without further elaboration, that his two claims against the Security Officers rest on the contention that the Security Officers are \"liable in their individual capacities acting under color of law.\" Id. at 1 (emphasis in original). As the Court observed in a further minute order, Herrion's representation made it clear that he has not brought suit against the Security Officers in their \"official\" capacities, despite the use of such language in the Amended Complaint. See Min. Order (Apr. 15, 2011).\nUnfortunately, Herrion's terse \"notice of claims\" was otherwise unhelpful in clarifying the precise contours of his claims against the Security Officers, and the Court therefore directed the parties to engage in a further round of briefing focusing on the question of the capacity in which the Security Officers have been sued in this action and the implications for Defendants' res judicata argument. See Min. Order (Apr. 15, 2011). On April 25, 2011, Defendants filed their supplemental memorandum. See Defs.' Suppl. Mem. of P. &amp; A. in Supp. of Their Mot. to Dismiss and/or Mot. for Summ. J., ECF No. [12]. On May 9, 2011, Herrion filed his supplemental opposition. See Pl.'s Suppl. Mem. of P. &amp; A. in Opp'n to Defs.' Mot. to Dismiss and/or for Summ. J. (\"Pl.'s Suppl. Opp'n\"), ECF No. [13]. On May 16, 2011, Defendants filed their supplemental reply. See Defs.' Reply to Pl.'s Opp'n to Suppl. Mem. of P. &amp; A. in Supp. of Their Mot. to Dismiss and/or for Summ. J., ECF No. [14]. The motion is now fully briefed and ripe for a decision.\n\nIII. LEGAL STANDARD\nSummary judgment is appropriate where \"the movant shows that there is no genuine dispute as to any material fact and [that it] ... is entitled to judgment as a matter of law.\" Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a \"material\" fact, and therefore \"[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be \"genuine,\" meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.\nIn order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record — including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence — in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed. R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA v. U.S. Dep't of Transp., 564 F.3d 462, 465-66 (D.C.Cir.2009). Moreover, where \"a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact,\" the district court may \"consider the fact undisputed for purposes of the motion.\" Fed.R.Civ.P. 56(e).\nWhen faced with a motion for summary judgment, the district court may not make *366 credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty Lobby, 477 U.S. at 255, 106 S. Ct. 2505. If material facts are genuinely in dispute, or undisputed facts are susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009). In the end, the district court's task is to determine \"whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.\" Liberty Lobby, 477 U.S. at 251-52, 106 S. Ct. 2505. In this regard, the non-movant must \"do more than simply show that there is some metaphysical doubt as to the material facts,\" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986); \"[i]f the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted,\" Liberty Lobby, 477 U.S. at 249-50, 106 S. Ct. 2505 (internal citations omitted).\n\nIV. DISCUSSION\nHerrion's pleadings are hardly the model of artful drafting. In the short time that this action has been pending, Herrion has abandoned some claims and asserted new ones in their place. As a result, the Court shall begin its discussion by delineating the contours of this action. Thereafter, the Court shall turn to the heart of the parties' dispute — namely, whether Herrion's claims against the Security Officers are barred under the doctrine of res judicata in light of the prior action in the Superior Court for the District of Columbia.\n\nA. The Scope of This Action Is Confined to Herrion's Section 1983 Claims Against the Security Officers in Their Individual Capacities\nHerrion asserts three claims in his Amended Complaint: two claims against the Security Officers arising under Section 1983, the first predicated on allegations of excessive force (Count I) and the second predicated on allegations that the Security Officers deliberately made false representations to the Metropolitan Police Department (Count II); and a third claim against both Children's National and the Security Officers for malicious prosecution (Count III). See Am. Compl. ¶¶ 15-24. In the Amended Complaint, Herrion purports to be suing the Security Officers in both their \"official\" and \"individual\" capacities. See id. ¶¶ 5-7.\n\n1. Herrion Has Abandoned His Malicious Prosecution Claim Against Children's National and the Security Officers\n\nHerrion's Amended Complaint includes a claim for malicious prosecution against both Children's National and the Security Officers (Count III). See Am. Compl. ¶¶ 21-24. However, in opposition to this motion, Herrion states that he \"does not intend to pursue the claim for malicious prosecution and therefore concedes that this count of his amended complaint should be dismissed.\" Pl.'s Opp'n at 1 n. 1. Based on this explicit concession, the Court shall grant Defendants' motion as conceded insofar as it seeks dismissal of Herrion's claim for malicious prosecution against Children's National and the Security Officers.\nSignificantly, Herrion's malicious prosecution claim is the only claim that has been asserted against Children's National in this action; both of Herrion's Section 1983 claims are directed exclusively towards the *367 Security Officers.[4]See Am. Compl. ¶¶ 15-24. Given that Herrion has conceded that his malicious prosecution claim must be dismissed, it follows that Children's National must be dismissed as a defendant.\n\n2. Herrion Has Abandoned Any Claims Against the Security Officers in Their \"Official\" Capacities\n\nIn his Amended Complaint, Herrion purports to bring suit against the Security Officers in both their \"official\" and \"individual\" capacities. See Am. Compl. ¶¶ 5-7. Because the Amended Complaint does not specify what is meant by this somewhat cryptic statement,[5] the Court issued a minute order requesting further clarification as to the nature of Herrion's claims against the Security Officers. See Min. Order (Apr. 7, 2011). Purporting to respond to the Court's minute order, Herrion filed a \"notice of claims,\" in which he represented that his two claims against the Security Officers rest on the contention that the Security Officers are \"liable in their individual capacities acting under color of law.\" Pl.'s Notice of Claims at 1 (emphasis in original). As the Court observed in a further minute order, Herrion's representation made it clear that he is not pursuing any claims against the Security Officers in their \"official\" capacities, despite the use of such language in the Amended Complaint. See Min. Order (Apr. 15, 2011). Based on this explicit concession, the Court shall grant Defendants' motion as conceded insofar as it seeks dismissal of Herrion's Section 1983 claims against the Security Officers in their \"official\" capacities (Counts I and II).\nAs a result of Herrion's explicit concessions, the only claims that remain at issue in this action are Herrion's two Section 1983 claims against the Security Officers in their \"individual\" capacities, the first *368 predicated on allegations of excessive force (Count I) and the second predicated on allegations that the Security Officers deliberately made false representations to the Metropolitan Police Department (Count II). The Court shall now turn to the task of explaining why Herrion is precluded from securing relief as to these claims.\n\nB. Herrion's Section 1983 Claims Against the Security Officers in their Individual Capacities Are Barred by the Doctrine of Res Judicata\nFederal courts must accord \"full faith and credit\" to the judgments of state courts, 28 U.S.C. § 1738, a command that extends with no less force to the judgments rendered by the courts of the District of Columbia, Youngin's Auto Body v. District of Columbia, 775 F. Supp. 2d 1, 5-6, 2011 WL 996662, at *3 (D.D.C. Mar. 17, 2011). To provide the requisite \"full faith and credit,\" federal courts must give the judgments of other courts of competent jurisdiction \"the same preclusive effect as would the issuing court,\" Stanton v. District of Columbia Court of Appeals, 127 F.3d 72, 77 (D.C.Cir.1997) — in this case, the Superior Court of the District of Columbia. The question of whether the Superior Court would afford the judgment at issue in this case preclusive effect turns on the reach of the doctrine of res judicata, or claim preclusion.\nUnder District of Columbia law,[6] the doctrine of res judicata provides that \"a valid final judgment on the merits absolutely bars the same parties from relitigating the same claim in a subsequent proceeding.\" Mamo v. District of Columbia, 934 A.2d 376, 387 (D.C.2007) (internal quotation marks omitted), cert. denied, 552 U.S. 1259, 128 S. Ct. 1670, 170 L. Ed. 2d 357 (2008). Specifically, a subsequent lawsuit will be barred if there has been prior litigation (i) involving the same claim or cause of action, (ii) between the parties or their privies and (iii) there has been a final judgment on the merits, (iv) by a court of competent jurisdiction. Porter v. Shah, 606 F.3d 809, 813 (D.C.Cir.2010). Provided these four elements are met, the final judgment \"embodies all of a party's rights arising out of the transaction involved, and a party will be foreclosed from later seeking relief on the basis of issues which might have been raised in the prior action.\" Parker v. Martin, 905 A.2d 756, 762 (D.C.2006) (internal quotation marks omitted). In this case, Defendants have carried their burden of establishing that all four elements are present.[7]\nAs an initial matter, the final two elements — a final judgment by a court of competent jurisdiction — are not in dispute. The Superior Court entered its final judgment on February 2, 2010. Defs.' Stmt. ¶ 18 &amp; Ex. 11. Children's National's subsequent motions for relief from that judgment have been denied, and the judgment remains final and binding on the parties. Id. ¶¶ 19-20. Meanwhile, Herrion affirmatively invoked the jurisdiction of the Superior *369 Court, secured relief under that jurisdiction, and has never suggested that the court's jurisdiction was in any way defective. As a result, the question of whether the doctrine of res judicata applies in this case turns on whether there is sufficient identity between the claims and parties in the two actions.\n\n1. Identity of Claims\n\nThe District of Columbia courts have adopted the \"transactional\" approach to claims identity, under which a claim is broadly seen as all the rights the plaintiff may have had against the defendant \"with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.\" Stanton, 127 F.3d at 78 (internal quotation marks omitted). That is, there is sufficient identity between claims when they are based on a common nucleus of fact, regardless of the legal theories actually relied upon by the plaintiff in the prior litigation. Capitol Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d 485, 490 (D.C.Cir. 2009). Generally speaking, the question is whether the claims in the prior action and the later action \"arise from the same underlying transaction.\" Smalls v. United States, 471 F.3d 186, 193 (D.C.Cir.2006).\nIn this case, there is no doubt that the Superior Court action and this action turn upon the same underlying conduct — namely, the events that allegedly transpired when Herrion visited his sister at Children's National on September 17, 2007. Indeed, the central factual allegations tendered by Herrion in the two actions are virtually identical:\n\n\n COMPLAINT IN THE\n SUPERIOR COURT AMENDED COMPLAINT\n ACTION IN THIS ACTION\n\"On September 17, 2007,\" On September 17, 2007,\nthe plaintiff was visiting his the plaintiff was visiting his\nminor sister at defendant's minor sister at defendant\n[sic] Children's Hospital on Children's Hospital on\nMichigan Avenue in the Michigan Avenue in the\nDistrict of Columbia.\" District of Columbia.\" Am.\nDefs.' Ex. ¶ 5. Compl. ¶ 8.\n\"While there, the plaintiff \"While there, the plaintiff\nwas asked to leave the was asked to leave the\nroom where his sister was room where his sister was\nbeing treated. Though in being treated. Though in\ndisagreement with this request, disagreement with this request,\nthe plaintiff began to the plaintiff began to\nleave the hospital with his leave the hospital with his\nmother. As he was walking mother. As he was walking\ntoward the exit, defendant's toward the exit, defendant's\nagents began to follow agents began to follow\nthe plaintiff. As the the plaintiff. As the\nplaintiff reached the door, plaintiff reached the door,\ndefendant's agents continued defendant's agents continued\nto follow and harass to follow and harass\nthe plaintiff.\" Defs.' Ex. 1 the plaintiff.\" Am. Compl.\n¶ 6. ¶ 9.\n\"While outside of the hospital \"While outside the hospital,\nseveral of the defendant's the defendants allegedly\nsecurity personnel arrested the plaintiff for assult\nattacked the plaintiff, beat on a police officer. At\nthe plaintiff, restrained the that point, the security officers\nplaintiff and took him back beat and kicked the\ninto the hospital where he plaintiff and then took the\nwas held in a room and repeatedly plaintiff into the security\nharassed while allegedly office to await the arrival\nunder arrest. Subsequently of the Metropolitan Police\nthe defendant Department.\" Am. Compl.\nsummoned the Metropolitan ¶ 10.\nPolice.\" Defs.' Ex. 1 ¶ 7.\n\"At all times relevant herein \"At all times relevant herein\nChildren's Hospital was Children's Hospital was\nresponsible for the actions responsible for the actions\ntaken by security personnel taken by security personnel\nrelative to the plaintiff relative to the plaintiff\nherein.\" Defs.' Ex. 1 ¶ 9. herein.\" Am. Compl. ¶ 14.\n\nIn fact, Herrion acknowledges that he brought suit in the Superior Court \"[a]s a result of these actions\" — i.e. the same conduct that he is attempting to challenge in this action. Am. Compl. ¶ 11. But even absent this explicit concession, it is beyond cavil that the Superior Court action and this action share a common nucleus of fact and arise from the same underlying transaction. Undeterred, Herrion offers two rejoinders, neither of which has any merit.\nFirst, Herrion argues that res judicata should not apply in this case because he did not actually pursue certain claims or legal theories before the Superior Court.[8]See Pl.'s Opp'n at 2-3. The *370 argument is entirely misplaced. It is well-established that res judicata applies regardless of the claims or legal theories actually relied upon in the earlier litigation. Nuyen v. Luna, 884 A.2d 650, 658 (D.C.2005) (internal quotation marks omitted). Res judicata is \"intended to prevent litigation of matters that should have been raised in an earlier suit\" just as much as it is intended to prevent relitigation of matters that actually were raised. Natural Res. Def. Council v. Envtl. Prot. Agency, 513 F.3d 257, 261 (D.C.Cir.2008) (internal quotation marks omitted; emphasis in original). Consistent with these aims, the doctrine may be invoked where, as here, the two actions share a common nucleus of fact and arise from the same underlying transaction.\nSecond, Herrion intimates that the legal theories that he intends to pursue in this action \"could not be supported with objective evidence ... until two days before the Superior Court action was scheduled to begin when the puzzle ... was finally solved and its secrets were revealed.\" Am. Compl. ¶ 13. As an initial matter, Herrion's contention that he did not have certain evidence at his disposal during the Superior Court action is not supported by the record. The purportedly unsolved \"puzzle\" referenced by Herrion is the security camera footage of the events transpiring on September 17, 2007, but that footage was produced to Herrion in the course of discovery in the Superior Court action and had been in his possession for nearly a year before the trial began. Defs.' Stmt. ¶¶ 8-9 &amp; Ex. 4 at 4, 6-8. As a matter of fact, Herrion relied upon the security camera footage in support of his allegations, deposed one of the Security Officers using the footage, and introduced the footage into evidence at trial. Id. ¶¶ 11, 14, 16 &amp; Exs. 6-7. The mere suggestion that Herrion may have encountered some difficulties in presenting the security camera footage as evidence at trial cannot suffice to evade the Superior Court's final judgment. But more to the point, Herrion's argument rests upon a complete misapprehension as to the governing legal standard. The only relevant question is whether Herrion was \"aware of [his] claim[s] at the time of the first litigation,\" Capitol Hill Group, 569 F.3d at 491, and there is no doubt that Herrion was aware of his claims and in fact pursued them before the Superior Court.\nTo the extent Herrion feels that newly discovered evidence somehow renders the Superior Court's final judgment unjust, he is of course free to petition the Superior Court for relief from that judgment. The remedy is not a new action in this Court. The Court concludes that there is sufficient identity of claims to apply the doctrine of res judicata in this case.\n\n2. Identity of Parties\n\nThe final element required to invoke res judicata — identity of parties — is *371 also present. In this case, whether there is sufficient identity between the parties to the two actions turns on what significance can be drawn from a single undisputed fact — specifically, the fact that the Security Officers were not named as defendants in the Superior Court action. In this regard, left largely unacknowledged by Herrion is the established principle that the doctrine of res judicata precludes relitigation of claims not just between the same nominal parties, but also their privies. Sollars v. Cully, 904 A.2d 373, 376 (D.C. 2006).\nBroadly speaking, \"[a] privy is one [who is] so identified in interest with a party to the former litigation that he or she represents precisely the same legal right in respect to the subject matter of the case.\" Smith v. Jenkins, 562 A.2d 610, 615 (D.C.1989). One particular form of privity may arise where two parties are bound by an agency relationship. Under District of Columbia law, a decision on the merits in a prior action involving the principal or the agent precludes a subsequent action against the other party to the agency relationship if the prior action concerned a matter within the scope of the agency. Major v. Inner City Prop. Mgmt., Inc., 653 A.2d 379, 381 (D.C.1995) (citing Lober v. Moore, 417 F.2d 714, 718 (D.C.Cir.1969); Tamari v. Bache &amp; Co. (Lebanon) S.A.L., 637 F. Supp. 1333, 1341 (N.D.Ill.1986)).[9] In accordance with this principle, courts have consistently held that res judicata applies to bar later suits against the principal or the agent where a final judgment has been rendered in a prior action involving the other party to the agency relationship and the two actions share a common nucleus of fact. See, e.g., Evans v. Chase Manhattan Mortg. Corp., Civil Action No. 04-2185(RMC), 2007 WL 902306, at *6-7 (D.D.C. Mar. 23, 2007); Advantage Health Plan, Inc. v. Knight, 139 F. Supp. 2d 108, 111 (D.D.C. 2001); Century Int'l Arms, Ltd. v. Fed. State Unitary Enter. State Corp. `Rosvoorouzheinie', 172 F. Supp. 2d 79, 96 (D.D.C. 2001).\nIn the Superior Court action, Herrion brought suit against Children's National on the theory that Children's National was vicariously liable for the actions allegedly taken by the Security Officers in the scope of their employment. Defs.' Stmt. ¶¶ 5-6, Ex. 1 ¶¶ 8-9, &amp; Ex. 10. In this action, Herrion again seeks to secure relief for the actions that the Security Officers are alleged to have committed in the scope of their employment — this time, against the Security Officers themselves. The two actions share a common nucleus of fact and both turn on the same conduct allegedly taken in the scope of the Security Officers' agency relationship with Children's National. Indeed, in his Amended Complaint, Herrion characterizes the Security Officers as Children's National's agents and expressly alleges that they were acting within the scope of their employment at all times. See Am. Compl. ¶¶ 5-7, 9. Under these circumstances, Children's National and the Security Officers are in effect *372 one and the same party for purposes of the two actions. As such, under the settled law of the District of Columbia, the Security Officers are entitled to invoke the doctrine of res judicata to preclude Herrion from securing relief in this action.[10]\nHerrion tenders two arguments in opposition, neither of which suffices to salvage this action. In particular, Herrion argues most forcefully that \"it has long been established that there is no obligation to join all tortfeasors ... in one lawsuit.\" Pl.'s Opp'n at 1-2. While that may be an accurate statement of the general rule governing the joinder of joint tortfeasors in a single action, the argument is misplaced; a final judgment still binds the parties and all their privies regardless of whether they are joint tortfeasors. As a matter of fact, the primary authority relied upon by Herrion in making his argument is in complete agreement on this point, providing that the general rule governing the joinder of joint tortfeasors does not override the preclusive effect to be afforded judgments where multiple parties are in privity. See Manicki v. Zeilmann, 443 F.3d 922, 926 (7th Cir.2006) (holding that a plaintiff need not name joint tortfeasors in a single suit \"unless there is privity among those parties, for in that event separate suits against them are treated as the equivalent of separate suits against the same party.\") (internal citations omitted).[11]\nHerrion's second argument is somewhat difficult to follow. Specifically, Herrion argues that suing a party in his or her \"individual\" capacity under Section 1983 is \"completely different\" from suing them in their \"official\" capacity. Pl.'s Suppl. Opp'n at 6. The proposition is entirely non-controversial. As the Court has already observed, official-capacity suits are treated as suits against the government entity itself. See Hafer, 502 U.S. at 25, 112 S. Ct. 358. Meanwhile, individual-capacity suits are just that — suits against individuals as individuals. But what significance Herrion intends to draw from the proposition is never made clear. True, courts have held that application of the so-called \"differing capacities\" exception to res judicata means that a government official sued in his individual capacity cannot invoke res judicata where there has been a prior action against him in his official capacity. See, e.g., Andrews v. Daw, 201 F.3d 521, 525 (4th Cir.2000). But when applied to the facts of this case, the argument goes nowhere. Herrion has abandoned his claims against the Security Officers in their official *373 capacities. See supra Part IV.A.2. All that is left is Herrion's claims against the Security Officers in their individual capacities and, in this regard, District of Columbia law provides that the Security Officers are, as individuals, in privity with Children's National as to the judgment entered in the Superior Court action because that action, like this one, concerned a matter within the scope of their agency. See Major, 653 A.2d at 381. As a result, the fact that the Security Officers are sued \"individually\" in this action is irrelevant. Cf. Advantage Health, 139 F.Supp.2d at 111 n. 2. The \"differing capacities\" exception has no bearing on this case.\nIn the final analysis, to allow this case to proceed against the Security Officers would create a framework under which a plaintiff could consciously design a legal strategy which would allow him two shots at the same target. Consistent with the underlying aims of res judicata — a doctrine which is designed to promote the finality of judicial determinations, to foster reliance on judicial decisions by minimizing the possibility of inconsistent decisions, to conserve scarce judicial resources, and to spare adversaries the vexation and expense of redundant litigation — the Court declines the invitation to create such a framework here. An aggrieved party should be given \"but one opportunity\" to secure redress for an alleged wrong. Molovinsky v. Monterey Coop., Inc., 689 A.2d 531, 533 (D.C.1996). The additional security for recovery of loss provided by the doctrine of vicarious liability should not afford an injured plaintiff the further option to split his claims and litigate successively the issues upon which his claims are founded. Where the matter concerns conduct undertaken within the scope of the agency, he is ordinarily in a position to sue both the principal and the agent, and may reasonably be expected to do so. In any event, this is the expectation imposed by the law of the District of Columbia. Herrion has already had his opportunity to seek redress for the events that allegedly transpired on September 17, 2007 in the Superior Court. He will not have a \"second bite at that same apple.\" Natural Res. Def. Council, 513 F.3d at 261.\n\nV. CONCLUSION\nFor the reasons set forth above, the Court shall grant Defendants' [7] Motion for Summary Judgment and dismiss this action in its entirety. An appropriate order accompanies this memorandum opinion.\nNOTES\n[1] In the District of Columbia, special police officers \"are commissioned for the special purpose of protecting property on the premises of the employer.\" Limpuangthip v. United States, 932 A.2d 1137, 1142 (D.C.2007) (internal quotation marks omitted). The employer must apply for the commission, and \"[o]nce a special police officer ceases to work for his or her employer, that [special police officer] loses the appointment.\" Moorehead v. District of Columbia, 747 A.2d 138, 144 (D.C.2000).\n[2] In this way, Local Civil Rule 7(h)(1) aligns with the relatively recent amendments to Rule 56 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 56(c)(1) &amp; (3) (requiring parties to \"cit[e] to particular parts of materials in the record,\" and providing that \"[t]he court need consider only the cited materials.\").\n[3] A third claim, immaterial to the resolution of this motion, was resolved prior to trial.\n[4] Lest there be any confusion, the Court pauses to observe that Herrion could not have asserted a viable Section 1983 claim against Children's National in this action. To the extent Herrion would seek to hold Children's National liable for the acts allegedly committed by the Security Officers in the scope of their employment, a private employer cannot be held liable under Section 1983 under a theory of respondeat superior for the constitutional torts committed by its employees. See Rojas v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir.1990), cert. denied, 502 U.S. 809, 112 S. Ct. 52, 116 L. Ed. 2d 30 (1991). To the extent Herrion would seek to hold Children's National liable for the acts allegedly committed by the Security Officers in their \"official\" capacities as special police officers commissioned by the Mayor of the District of Columbia, official-capacity suits are treated as suits against the government itself, Hafer v. Melo, 502 U.S. 21, 25, 112 S. Ct. 358, 116 L. Ed. 2d 301 (1991), meaning that the District of Columbia — and not Children's National — would be the true defendant for any such claim. Finally, to the extent Herrion would seek to hold Children's National liable under Section 1983 for its own acts, see Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 61-62 (D.D.C.2007), such a claim could have, and should have, been raised in the Superior Court action — in which Children's National was a named party — and would therefore be barred by the doctrine of res judicata.\n[5] The only conceivable \"official\" capacity in which the Security Officers could be sued under Section 1983 is their capacity as special police officers commissioned by the Mayor of the District of Columbia. See D.C.Code § 5-129.02(a). However, as previously observed, suits against government officials in their \"official\" capacities are treated as suits against the government itself, and Herrion has never attempted to bring the District of Columbia into this action nor alleged a factual basis for suggesting that the conduct at issue could be attributed to a municipal policy or custom. See Waker v. Brown, 754 F. Supp. 2d 62, 64-65 (D.D.C.2010) (concluding that the plaintiff in an official-capacity suit failed to effect proper service upon the District of Columbia); Atchinson v. District of Columbia, 73 F.3d 418, 422 (D.C.Cir.1996) (providing that a complaint must \"include some factual basis for the allegation of a municipal policy or custom\").\n[6] Because federal courts are required to provide state court judgments \"the same full faith and credit ... as they have by law or usage in the course of such State, Territory or Possession,\" 28 U.S.C. § 1738, they apply state res judicata principles, Czarniecki v. City of Chicago, 633 F.3d 545, 548 n. 3 (7th Cir.2011). Nonetheless, as it has repeatedly been observed that there is no material difference between the law of the District of Columbia and the federal common law on this subject, see, e.g., Stanton, 127 F.3d at 78 n. 4, authorities interpreting the doctrine in either context are persuasive.\n[7] Because res judicata is an affirmative defense, its proponent bears the burden of establishing its application to the case at hand. SBC Commc'ns Inc. v. Fed. Commc'ns Comm'n, 407 F.3d 1223, 1230 (D.C.Cir.2005).\n[8] Herrion's argument is that res judicata does not apply here because he did not, as a matter of historical fact, pursue certain claims or legal theories before the Superior Court — in particular, a claim arising under Section 1983. He does not appear to dispute that if he had pursued a Section 1983 claim, the Superior Court would have been able to exercise jurisdiction over such a claim. In any event, it is well-established that state courts have concurrent jurisdiction over claims arising under Section 1983. See Woodward &amp; Lothrop v. Hillary, 598 A.2d 1142, 1143 (D.C. 1991) (plaintiff brought Section 1983 claims against special police officers and common law claims against their employer). Moreover, res judicata \"does not turn on whether the first court chosen had jurisdiction as expansive as a later one.\" Smith v. Horner, 846 F.2d 1521, 1524 (D.C.Cir.1988). Rather, \"[a]ll that matters is that [the] plaintiff ... had the opportunity to litigate both claims in a court of competent jurisdiction ... but instead chose to split them.\" Id. (emphasis in original).\n[9] The District of Columbia is hardly alone in this approach to privity between principals and their agents. See, e.g., Saudi Arabia v. Nelson, 507 U.S. 349, 376, 113 S. Ct. 1471, 123 L. Ed. 2d 47 (1993) (Kennedy, J., concurring in part, dissenting in part); Fiumura v. Fireman's Fund Ins. Cos., 746 F.2d 87, 92 (1st Cir.1984); Krepps v. Reiner, 377 Fed.Appx. 65, 68 (2d Cir.2010); Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 547 n. 11 (3d Cir.2006); Lubrizol Corp. v. Exxon Corp., 871 F.2d 1279, 1288-89 (5th Cir.1989); Evans v. Pearson Enters., Inc., 434 F.3d 839, 850 n. 5 (6th Cir.2006); Lambert v. Conrad, 536 F.2d 1183, 1186 (7th Cir.1976); Spector v. El Ranco, Inc., 263 F.2d 143, 145 (9th Cir.1959); Pelletier v. Zweifel, 921 F.2d 1465, 1501 (11th Cir.), cert. denied, 502 U.S. 855, 112 S. Ct. 167, 116 L. Ed. 2d 131 (1991).\n[10] Herrion was previously warned that the Court was \"inclined to rule that the Security Officers are privies to the Superior Court judgment insofar as they are being sued in this action in their capacity for actions committed within the scope of their employment and as security guards in Children's [National's] employ.\" Min. Order (Apr. 15, 2011). The Court nevertheless afforded Herrion a further opportunity to explain why the Court should not hold that this action is barred by res judicata based on that conclusion. Rather than taking the opportunity, Herrion adopted the erroneous position that \"it matters not whether one is acting within or outside the scope of one's employment.\" Pl.'s Suppl. Opp'n at 5. In this action, Herrion has never argued that the Security Officers are being sued for anything other than conduct that they allegedly committed in the scope of their employment as security guards for Children's National. Even if he had, the Amended Complaint is devoid of allegations that would support such an argument.\n[11] A second authority cited by Herrion is easily distinguishable because it involved a situation where the defendants did \"not fall within the orthodox categories of privies.\" Lawlor v. Nat'l Screen Serv. Corp., 349 U.S. 322, 329-30, 75 S. Ct. 865, 99 L. Ed. 1122 (1955). A third authority addressed not res judicata but the separate question of necessary joinder. See Temple v. Synthes Corp. Ltd., 498 U.S. 5, 7, 111 S. Ct. 315, 112 L. Ed. 2d 263 (1990).\n\n", "ocr": false, "opinion_id": 2169019 } ]
District of Columbia
District Court, District of Columbia
FD
USA, Federal
1,682,675
null
2007-10-03
false
brown-v-state
Brown
Brown v. State
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "966 So. 2d 392" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n966 So. 2d 392 (2007)\nBROWN\nv.\nSTATE.\nNo. 2D07-2954.\nDistrict Court of Appeal of Florida, Second District.\nOctober 3, 2007.\nDecision without published opinion. Affirmed.\n", "ocr": false, "opinion_id": 1682675 } ]
District Court of Appeal of Florida
District Court of Appeal of Florida
SA
Florida, FL
440,011
Celebrezze, Engel, Kennedy, Per Curiam
1984-08-23
false
frederick-c-lucius-and-carliss-jean-lucius-debtors-appellants-v-john-c
null
Frederick C. Lucius and Carliss Jean Lucius, Debtors-Appellants v. John C. McLemore Trustee-Appellee
Frederick C. LUCIUS and Carliss Jean Lucius, Debtors-Appellants, v. John C. McLEMORE, Trustee-Appellee
H. Marshall Judd, Cookeville, Tenn., for debtor s-appellants., John C. McLemore, Nashville, Tenn., for trustee-appellee.
null
null
null
null
null
null
null
Submitted July 19, 1984.
null
null
62
Published
null
<parties id="b1203-4"> Frederick C. LUCIUS and Carliss Jean Lucius, Debtors-Appellants, v. John C. McLEMORE, Trustee-Appellee. </parties><docketnumber id="AChd"> No. 83-5641. </docketnumber><br><court id="b1203-7"> United States Court of Appeals, Sixth Circuit. </court><br><otherdate id="b1203-8"> Submitted July 19, 1984. </otherdate><br><decisiondate id="b1203-9"> Decided Aug. 23, 1984. </decisiondate><br><attorneys id="b1204-4"> <span citation-index="1" class="star-pagination" label="126"> *126 </span> H. Marshall Judd, Cookeville, Tenn., for debtor s-appellants. </attorneys><br><attorneys id="b1204-5"> John C. McLemore, Nashville, Tenn., for trustee-appellee. </attorneys><br><judges id="b1204-6"> Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge. </judges>
[ "741 F.2d 125" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/741/741.F2d.125.83-5641.html", "author_id": null, "opinion_text": "741 F.2d 125\n 11 Collier Bankr.Cas.2d 296, 12 Bankr.Ct.Dec. 847,Bankr. L. Rep. P 69,974\n Frederick C. LUCIUS and Carliss Jean Lucius, Debtors-Appellants,v.John C. McLEMORE, Trustee-Appellee.\n No. 83-5641.\n United States Court of Appeals,Sixth Circuit.\n Submitted July 19, 1984.Decided Aug. 23, 1984.\n \n H. Marshall Judd, Cookeville, Tenn., for debtors-appellants.\n John C. McLemore, Nashville, Tenn., for trustee-appellee.\n Before ENGEL and KENNEDY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.\n PER CURIAM.\n \n \n 1\n This case raises the question when a debtor may amend his filed schedules to add to the list of exempted property. We hold that under Rule 110 of the old Federal Rules of Bankruptcy Procedure and Rule 1009 of the new Rules the debtor may amend his list as a matter of course at any time before the close of the case.\n \n \n 2\n The debtors, Frederick C. and Carliss Jean Lucius, filed a voluntary petition in bankruptcy on October 20, 1982. The Luciuses filed a Schedule B-4, claiming as exempt property clothing, household goods and furnishings, and an income tax refund. The Luciuses also filed statements indicating that they owned two vehicles, a Dodge van and a Buick, and that a bank held a security interest in the Buick.\n \n \n 3\n The creditors' meeting was held on December 16, 1982. The bank did not participate and, upon inquiry by the trustee, stated that the Luciuses' obligation had been paid in full previously. The trustee then asked the Luciuses to surrender the two vehicles; counsel responded that the Luciuses had moved to Minnesota, taking the vehicles with them.\n \n \n 4\n On January 18, 1983, the trustee filed suit against the Luciuses to prevent their discharge in bankruptcy, and to obtain the vehicles; the Luciuses were served with the complaint on February 4, 1983. At a pretrial conference, the trustee conceded that the Luciuses did not move the vehicles with the intent to hinder or delay the trustee's administration of the estate, but contended that their refusal to surrender the vehicle was producing that effect.\n \n \n 5\n On February 7, 1983, the Luciuses filed a petition with the Bankruptcy Court to amend the schedule of exemptions to add the vehicles. The trustee objected to the proposed amendment as untimely. The bankruptcy judge, as standing master, filed a report recommending that the petition be denied. Although the Luciuses objected to the report, the District Court denied the petition as untimely. This order is now on appeal before this Court.\n \n \n 6\n Rule 110 of the old Federal Rules of Bankruptcy Procedure, in effect when this case was heard, provided, \"A voluntary petition, schedule, or statement of affairs may be amended as a matter of course at any time before the case is closed.\"1 The courts in the Middle District of Tennessee have held that Rule 110 was effectively rescinded by its conflict with 11 U.S.C. Sec. 522(l ), which states:\n \n \n 7\n The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt.\n \n \n 8\n These courts have reasoned that section 522(l ), by requiring that parties in interest be given time to object to proposed exemptions, limited the time during which exemptions can be claimed as of right to the 15-day period for objections established by former Rule 403. See, e.g., In re Williams, 26 B.R. 741 (Bankr.M.D.Tenn.1982); In re Brewer, 17 B.R. 186 (Bankr.M.D.Tenn.), aff'd, 22 B.R. 983 (M.D.Tenn.1982).\n \n \n 9\n Rule 110 has been adopted without substantive change as Rule 1009 of the (new) Federal Rules of Bankruptcy Procedure, effective August 1, 1983: \"A voluntary petition, list, schedule, statement of financial affairs, statement of executory contracts, or Chapter 13 Statement may be amended by the debtor as a matter of course at any time before the case is closed.\" This readoption indicates that Congress perceived no inconsistency between this rule and the Bankruptcy Code, including section 522(l ). The Advisory Committee Note to Rule 1009 reaffirms the legislative intent to allow amendment as a matter of course for schedules, including lists of exempt property.\n \n \n 10\n This rule continues the permissive approach adopted by former Bankruptcy Rule 110 to amendments of voluntary petitions and accompanying papers. Notice of any amendment is required to be given to the trustee. This is particularly important with respect to any amendment of the schedule of property affecting the debtor's claim of exemptions.\n \n \n 11\n (Emphasis added).\n \n \n 12\n This \"permissive approach,\" allowing amendment at any time before the case is closed and denying courts discretion to reject amendments, has been endorsed in several circuits. See Shirkey v. Leake, 715 F.2d 859, 863 (4th Cir.1983); In re Doan, 672 F.2d 831, 833 (11th Cir.1982); In re Gershenbaum, 598 F.2d 779 (3d Cir.1979); In re Andermahr, 30 B.R. 532 (Bankr. 9th Cir.1983).2 Courts may still refuse to allow an amendment where the debtor has acted in bad faith or where property has been concealed. See Doan, 672 F.2d at 833. Moreover, under Sec. 522(l ) the proposed exemptions are subject to objection by a party in interest. See, e.g., Andermahr, 30 B.R. at 534; In re Maxwell, 5 B.R. 58 (Bankr.N.D.Ga.1980).\n \n \n 13\n Accordingly, we reverse the order of the District Court denying the debtors' application to amend their Schedule B-4 and remand for further proceedings.\n \n \n \n 1\n Local Rule 15 of the United States Bankruptcy Court for the Middle District of Tennessee, deleted March 1, 1984, implemented Rule 110\n \n \n 2\n The bankruptcy judge who originally acted as standing master in this case has recently indicated that he now believes that the precedents of the Middle District of Tennessee rejecting a right to amend under Rule 110, upon which he presumably based his recommendation in this case, no longer have validity. See In re Davis, 38 B.R. 585 (Bankr.M.D.Tenn.1984) (Lundin, J.)\n \n \n ", "ocr": false, "opinion_id": 440011 } ]
Sixth Circuit
Court of Appeals for the Sixth Circuit
F
USA, Federal
529,405
Anderson, Johnson, Kravitch
1989-10-10
false
american-family-life-assurance-company-of-columbus-georgia-a-georgia
null
American Family Life Assurance Company of Columbus, Georgia, a Georgia Corp. v. United States Fire Company, and Boston Old Colony Insurance Company
AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA, a Georgia Corp., Plaintiff-Appellee, v. UNITED STATES FIRE COMPANY, and Boston Old Colony Insurance Company, Defendants-Appellants
Michael Hufft, Kansas City, Mo., H. Baxter Harcourt, Columbus, Ga., for Boston Old Colony Ins. Co., John W. Denney, Bradford C. Dodds, Kelly, Denney, Pease & Allison, Columbus, Ga., for U.S. Fire Co., Forrest L. Champion, Jr., Champion & Champion, Albert W. Stubbs, Hatcher, Stubbs, Land, Hollis & Rothschild, Columbus, Ga., for plaintiff-appellee.
null
null
null
null
null
null
null
null
null
null
56
Published
null
<parties id="b900-7"> AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA, a Georgia Corp., Plaintiff-Appellee, v. UNITED STATES FIRE COMPANY, and Boston Old Colony Insurance Company, Defendants-Appellants. </parties><br><docketnumber id="b900-10"> No. 88-8755. </docketnumber><br><court id="b900-11"> United States Court of Appeals, Eleventh Circuit. </court><br><decisiondate id="b900-12"> Oct. 10, 1989. </decisiondate><br><attorneys id="b902-17"> <span citation-index="1" class="star-pagination" label="828"> *828 </span> Michael Hufft, Kansas City, Mo., H. Baxter Harcourt, Columbus, Ga., for Boston Old Colony Ins. Co. </attorneys><br><attorneys id="b902-18"> John W. Denney, Bradford C. Dodds, Kelly, Denney, Pease &amp; Allison, Columbus, Ga., for U.S. Fire Co. </attorneys><br><attorneys id="b902-19"> Forrest L. Champion, Jr., Champion &amp; Champion, Albert W. Stubbs, Hatcher, Stubbs, Land, Hollis &amp; Rothschild, Columbus, Ga., for plaintiff-appellee. </attorneys><br><judges id="b902-21"> Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges. </judges>
[ "885 F.2d 826" ]
[ { "author_str": "Johnson", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/885/885.F2d.826.88-8755.html", "author_id": null, "opinion_text": "885 F.2d 826\n AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS, GEORGIA,a Georgia Corp., Plaintiff-Appellee,v.UNITED STATES FIRE COMPANY, and Boston Old Colony InsuranceCompany, Defendants-Appellants.\n No. 88-8755.\n United States Court of Appeals,Eleventh Circuit.\n Oct. 10, 1989.\n \n Michael Hufft, Kansas City, Mo., H. Baxter Harcourt, Columbus, Ga., for Boston Old Colony Ins. Co.\n John W. Denney, Bradford C. Dodds, Kelly, Denney, Pease &amp; Allison, Columbus, Ga., for U.S. Fire Co.\n Forrest L. Champion, Jr., Champion &amp; Champion, Albert W. Stubbs, Hatcher, Stubbs, Land, Hollis &amp; Rothschild, Columbus, Ga., for plaintiff-appellee.\n Appeal from the United States District Court for the Middle District of Georgia.\n Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges.\n JOHNSON, Circuit Judge:\n \n \n 1\n This case arises on appeal from the entry of judgment after a jury trial in favor of the plaintiff, American Family Life Assurance Company of Columbus, Georgia (\"American Family\"), against two insurance companies, on claims brought under Georgia law for attorney's fees incurred by American Family in defense of a Missouri suit alleging American Family had engaged in malicious prosecution, for attorney's fees incurred in suits to recover these attorney's fees, and for prejudgment interest. We affirm in part, reverse in part, and remand.\n \n I. FACTS\n \n 2\n This case has a complicated history. The first relevant event occurred when American Family brought suit against the former Governor of Missouri, Joseph P. Teasdale, alleging tortious interference with contract rights and utterance of injurious falsehoods stemming from Teasdale's actions, taken while governor, banning the sale of cancer insurance (\"case 1\"). The trial court entered judgment in favor of defendant and granted defendant's post-judgment motion for attorney's fees because the court found the suit vindictive and frivolous. American Family Life Assurance Co. v. Teasdale, 564 F. Supp. 1571 (W.D.Mo.1983), aff'd, 733 F.2d 559 (8th Cir.1984).\n \n \n 3\n On July 29, 1983, Governor Teasdale filed suit against American Family in the Western District of Missouri alleging malicious prosecution and abuse of process (\"case 2\"). At this time, American Family had a $500,000 liability insurance policy with Boston Old Colony Insurance Company (\"Boston Old Colony\"), and a $9 million excess insurance policy with United States Fire Insurance Company (\"U.S. Fire\"). Both policies had clauses providing that the insurance carriers would defend suits filed against American Family. On August 10, 1983, twelve days after Teasdale filed suit, American Family notified Boston Old Colony and U.S. Fire of the suit and requested each to provide a defense. On August 19, 1983, Boston Old Colony denied coverage of liability in the insurance policy but agreed to defend American Family in Teasdale's suit. On August 29, 1983, U.S. Fire denied both coverage and its obligation to defend.\n \n \n 4\n On May 29, 1984, American Family notified Boston Old Colony and U.S. Fire that their denial of coverage had created a conflict of interest in response to which American Family had obtained its own legal representation. On June 20, 1984, U.S. Fire filed a declaratory judgment action in federal district court in the Western District of Missouri seeking a declaration that it was not liable either to American Family or to Teasdale (\"case 3\"). Boston Old Colony intervened in this suit. On December 13, 1984, the Missouri district judge stayed the proceedings in the declaratory judgment action pending resolution of Teasdale's suit against American Family.\n \n \n 5\n On May 15, 1985, American Family filed suit against Boston Old Colony and U.S. Fire in federal district court in the Middle District of Georgia (\"case 4\"). In Count I, American Family sought to recover attorney's fees it had incurred in defense of Teasdale's suit. In Count II, American Family sought a declaratory judgment interpreting its rights and obligations under the insurance contracts with Boston Old Colony and U.S. Fire. American Family also sought to recover attorney's fees and expenses incurred in cases 3 and 4 on the basis of bad faith by Boston Old Colony and U.S. Fire in denying coverage in those two actions.\n \n \n 6\n On June 26, 1985, the Georgia district court granted partial summary judgment in favor of American Family in case 4. The court first applied Georgia choice-of-law rules and determined that Georgia law governed the construction, validity, and interpretation of the insurance contracts. The court then held that under these contracts both Boston Old Colony and U.S. Fire had the duty to defend American Family in Teasdale's suit. The district court further found that, because Boston Old Colony and U.S. Fire had denied coverage, a conflict of interest existed between the insurers, Boston Old Colony and U.S. Fire, and the insured, American Family, such that American Family was justified in obtaining independent counsel. Finally, the district court held that American Family could negotiate settlement with Teasdale and that Boston Old Colony and U.S. Fire would be bound by any reasonable settlement.\n \n \n 7\n The district court certified final judgment on October 25, 1985, and defendants appealed. During the pendency of this appeal, the district court in the Western District of Missouri transferred U.S. Fire's declaratory judgment action against American Family to the Middle District of Georgia under 28 U.S.C.A. Sec. 1404(a). Upon transfer, the district judge in the Middle District of Georgia consolidated the cases, and shortly thereafter the parties settled Teasdale's suit. This Court dismissed defendants' appeal from the grant of summary judgment for lack of subject matter jurisdiction based on mootness, because the claims for coverage had been settled, and based on a lack of finality, because the amount of attorney's fees claimed had not yet been determined. American Family Life Assurance Co. v. United States Fire Insurance Co., 794 F.2d 629 (11th Cir.1986). This Court remanded the case to the district court for further proceedings on the attorney's fees issue. On July 31, 1987, Boston Old Colony filed a cross-claim against U.S. Fire for contribution and indemnification, and U.S. Fire counterclaimed.\n \n \n 8\n The Georgia district court held a jury trial between June 20, 1988, and June 27, 1988, on the issue of defendants' liability for American Family's attorney's fees. The jury returned a verdict in favor of American Family against both defendants in the amount of $753,416.08. The jury awarded $294,930.80 in attorney's fees and expenses incurred in defending Teasdale's suit (case 2). The jury found that both defendants had denied coverage in bad faith; the jury awarded $39,303.21 for attorney's fees and expenses incurred in connection with the declaratory judgment action originally brought in Missouri (case 3), and $419,182.07 in fees and expenses incurred in the action brought in the Middle District of Georgia (case 4). The jury granted an award of prejudgment interest on all claims. On August 2, 1988, after calculating the interest to total $111,502.69, the district court entered final judgment in favor of American Family in the amount of $864,919.07. The district court also denied Boston Old Colony's cross-claim against U.S. Fire and U.S. Fire's counterclaim. Subsequent to entering judgment, the district court denied defendants' motions for judgment notwithstanding the verdict and for a new trial. Boston Old Colony and U.S. Fire appeal.\n \n II. DISCUSSION\n \n 9\n Boston Old Colony and U.S. Fire moved for judgment notwithstanding the verdict on all claims brought by American Family on which the jury rendered a verdict in favor of American Family. The review of a jury verdict on a motion for judgment notwithstanding the verdict is provided in Boeing Company v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc):\n \n \n 10\n On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury. A mere scintilla of evidence is insufficient to present a question for the jury.\n \n \n 11\n See generally Watts v. Great Atlantic and Pacific Tea Co., 842 F.2d 307, 309-10 (11th Cir.1988) (applying Boeing Co.). On appeal from the jury verdict, this Court applies the same standard. This Court will accept the jury verdict if there exist probative facts in the record to support it. See Fitzgerald v. McDaniel, 833 F.2d 1516, 1519 (11th Cir.1987).\n \n A. Attorney's Fees in Teasdale's Suit\n 1. Choice of Law\n \n 12\n The question of which state's substantive law applies in a case is a question of law entitled to independent review on appeal. Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1516 (11th Cir.1985). In diversity cases, the choice-of-law rules of the forum state determine which state's substantive law applies. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941). Federal jurisdiction in this case is based on diversity, and Georgia was the forum state. Under Georgia choice-of-law rules, interpretation of insurance contracts is governed by the law of the place of making. Avemco Insurance Co. v. Rollins, 380 F. Supp. 869, 872 (N.D.Ga.), aff'd without opinion, 500 F.2d 1182 (5th Cir.1974). Insurance contracts are considered made at the place where the contract is delivered. Id.; see Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598, 602 (5th Cir. Unit B 1981) (\"Under Georgia law the place of the delivery of the insurance contract controls.\"). The insurance contracts in this case were delivered in Georgia. Consequently, Georgia substantive law controls.\n \n \n 13\n Defendants argue that Missouri choice-of-law rules should be applied because U.S. Fire's declaratory judgment action against American Family was transferred under 28 U.S.C.A. Sec. 1404(a) from the Western District of Missouri to the Middle District of Georgia. The Court in Roofing &amp; Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 991 (11th Cir.1982), stated the general rule to apply in these circumstances: \"When a defendant moves successfully for a transfer to a more convenient forum under 28 U.S.C.A. Sec. 1404(a), however, the transferee court must apply the same state law that the transferor court would have applied.\" See also Van Dusen v. Barrack, 376 U.S. 612, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964). We disagree that this rule compels application of Missouri's choice-of-law rules in this case. The transfer of the declaratory judgment action from Missouri to Georgia did not alter the substantive law to be applied in the Georgia case, and the coverage issues raised in the Missouri action became moot upon settlement. See American Family Life, 794 F.2d at 630. We conclude that the district court correctly applied Georgia choice-of-law rules and Georgia substantive law to American Family's claim for attorney's fees in Teasdale's suit.\n \n 2. Boston Old Colony\n \n 14\n Boston Old Colony's insurance contract with American Family included a clause imposing on Boston Old Colony the duty to defend claims against American Family. Although the duty to defend is coextensive with coverage, see Ezell v. Hayes Oilfield Construction Co., 693 F.2d 489, 494 (5th Cir.1982), cert. denied, 464 U.S. 818, 104 S. Ct. 79, 78 L. Ed. 2d 90 (1983), the obligation to defend is a separate contract right that exists independent of the insurer's liability for the face value of the policy. See Hall v. Allstate Ins. Co., 880 F.2d 394, 399 (11th Cir.1989). The policy covered Teasdale's claims against American Family. See Greenwood Cemetery, Inc. v. Traveler's Indemnity Co., 238 Ga. 313, 232 S.E.2d 910 (1970). Boston Old Colony's tender of its policy limits did not relieve it of its obligation to provide a defense. Anderson v. United States Fidelity and Guaranty Co., 177 Ga.App. 520, 339 S.E.2d 660, 661 (1986). Under the terms of the contract, then, Boston Old Colony was obligated to defend American Family in Teasdale's suit.\n \n \n 15\n Boston Old Colony offered to provide a defense at the time it denied coverage. The duty to provide a defense, however, was contingent upon coverage. St. Paul Fire and Marine Ins. Co. v. Mitchell, 164 Ga.App. 215, 296 S.E.2d 126, 127 (1982). When Boston Old Colony denied coverage, it created a conflict of interest between itself and American Family. See 7C J. Appleman, Insurance Law and Practice Sec. 4685.01, at 139-40, and Sec. 4686, at 175 (1979); cf. Boyd Bros. Transp. Co. v. Fireman's Fund Insurance Cos., 729 F.2d 1407, 1410 (11th Cir.1984) (under Georgia law, attorney hired by insurance company to represent insured is agent of the insurance company). The existence of a conflict of interest would have justified American Family in rejecting Boston Old Colony's offer to provide a defense. Cf. Ezell, 693 F.2d at 494; see generally 7C J. Appleman, supra, Sec. 4685.01, at 139 (\"where a conflict of interest exists between the insurer and the insured in the conduct of the defense of the action brought against the insured, the insured has the right to refuse to accept an offer of the counsel appointed by the insurer ...\"). In such circumstances, Boston Old Colony would have been obligated to pay for American Family's defense. Hughes v. State Farm Mutual Automobile Insurance Co., 101 Ga.App. 443, 114 S.E.2d 61, 64 (1960); see, e.g., Cay Divers, Inc. v. Raven, 812 F.2d 866 (3rd Cir.1987).\n \n \n 16\n This case is complicated because American Family did not reject Boston Old Colony's offer to provide a defense. Rather, American Family hired independent counsel to monitor and to aid in the defense. To the extent counsel participated in the defense, Boston Old Colony is liable for the costs as part of its obligation to provide a defense. See 7C J. Appleman, supra, Sec. 4685.01, at 140-41. To the extent American Family's counsel monitored the defense provided by Boston Old Colony, we conclude that Boston Old Colony is also liable for the costs as part of its obligation to provide a defense. Where an insured hires co-counsel instead of rejecting the defense offered by the insurance company after an insurance company denies coverage but offers to provide a defense, it does not seem to us misplaced to put the burden on the insurance company to choose between denying a defense and providing a defense in cooperation with co-counsel retained by the insured. Consequently, we affirm the judgment entered against Boston Old Colony for expenses American Family incurred in connection with its defense of the Teasdale suit.\n \n 3. U.S. Fire\n \n 17\n U.S. Fire denied coverage and also refused to defend American Family. U.S. Fire argues that as American Family's excess insurance carrier it was not obligated to provide a defense. It is true that in the absence of a contractual obligation U.S. Fire as the excess insurance carrier was not obligated to provide a defense. United States Fire Insurance Co. v. Capital Ford Truck Sales, Inc., 257 Ga. 77, 355 S.E.2d 428 (1987). In this case, however, there was a provision in the insurance contract imposing such an obligation on U.S. Fire.1 Once Boston Old Colony denied coverage, U.S. Fire was contractually obligated to provide a defense. See 14 Couch on Insurance 2d Sec. 51:36, at 446 (\"But if the primary insurer denies coverage, the excess insurer would be obligated to defend.\"); cf., e.g., Lamb Brothers Lumber Co. v. South Carolina Insurance Co., 186 Ga.App. 51, 366 S.E.2d 388 (1988); see generally Garmany v. Mission Insurance Co., 785 F.2d 941, 945 (11th Cir.1986) (discussing rules of interpretation for excess insurance policies under Georgia law). Additionally, U.S. Fire became obligated to defend once it became clear that Boston Old Colony's policy would not cover American Family's liability. See 14 Couch on Insurance 2d Sec. 51:36, at 446 (\"But certain courts have held that the excess carrier must participate in the defense and share in the costs of defense when it is clear that the potential judgment against the insured may be substantially greater than the amount of the primary policy limits.\"). Because U.S. Fire was contractually obligated to provide a defense, we conclude that U.S. Fire is liable for attorney's fees incurred by American Family in providing its own defense.\n \n B. Attorney's Fees for Bad Faith\n 1. Missouri Law\n \n 18\n The jury rendered a verdict based on bad faith under Georgia law against Boston Old Colony and U.S. Fire for attorney's fees and expenses incurred by American Family in defense of the declaratory judgment action brought in Missouri. As a general matter, 28 U.S.C.A. Sec. 2202 does not provide for attorney's fees and expenses incurred in defending declaratory judgment actions. See generally Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). However, a federal court sitting in diversity should give effect to the forum state's rule regarding attorney's fees. Id. at 259 n. 31, 95 S. Ct. at 1622 n. 31. Thus, the Missouri district court would have applied Missouri law to determine whether American Family was entitled to attorney's fees in the Missouri declaratory judgment action. Although this case was transferred to the Middle District of Georgia prior to judgment, that transfer does not affect the analysis. The substantive law that applies in a suit originally brought in Missouri and transferred by the defendant or by the court under 28 U.S.C.A. Sec. 1404(a) to Georgia should be determined according to Missouri's choice-of-law rules. See La Quinta Motor Inns, Inc., 689 F.2d at 991; see generally 1 A Part 2 Moore's Federal Practice Part 2 Sec. 0.345[4.-5], at pp. 4349-50. The district court erred in applying Georgia's choice-of-law rules to this claim. We must determine whether application of Missouri's choice-of-law rules would have resulted in choice of Georgia substantive law, and, if not, whether application of Georgia substantive law constitutes reversible error.\n \n \n 19\n Missouri has adopted the most significant relationship test set out in the Restatement (Second) Conflict of Laws Sec. 6. See, e.g., Ashland Oil, Inc. v. Tucker, 768 S.W.2d 595, 599 (Mo.App.1989). For casualty insurance policies, application of that test results in application of the substantive law of the principal location of the insured risk. See Restatement (Second) Conflict of Laws Sec. 193. If there is no principal location of the insured risk, Missouri courts apply the factors listed in the Restatement (Second) Conflict of Laws Sec. 188. Those factors are: (a) place of contracting; (b) place of negotiation; (c) place of performance; (d) location of the subject matter of the contract; and (e) the domicil, residence, nationality, place of incorporation, and place of business of the parties. If both the place of negotiation and the place of performance are in the same state, the law of that state generally should apply. Id. at Sec. 188(3).\n \n \n 20\n In this case, there was no principal location of the insured risk. American Family's business is national in scope. Consequently, we must look to the factors set out in section 188 of the Restatement to determine which state's substantive law a Missouri court would have chosen. The place of delivery of the contract was Georgia; the premiums were paid in Georgia; American Family is located and incorporated in Georgia. Missouri, on the other hand, is simply the state where the incident giving rise to liability occurred. Balancing these factors, we conclude that Missouri would have applied Georgia law to the interpretation of this contract. Consequently, the district court did not err in applying Georgia law.2\n \n 2. Georgia Law\n \n 21\n Under Georgia law, an insured is entitled to expenses incurred in actions brought to enforce the terms of an insurance contract against an insurance company if the insurance company has acted in bad faith, with fraudulent intent, or as a product of stubborn litigiousness in denying coverage or defense obligations. Hilde v. United States Fire Insurance Co., 362 S.E.2d at 71; see O.C.G.A. Sec. 13-6-13.3 \"Bad faith means any frivolous and unfounded purpose in law or in fact in refusing to undertake a contractually promised defense assistance.\" Hilde, 362 S.E.2d at 72. If the insurance company raises a reasonable question of law or disputed issue of fact in refusing to fulfill a contractual obligation, however, the insurance company cannot have acted in bad faith as a matter of law. Giles v. National Union Fire Insurance Co., 578 F. Supp. 376 (M.D.Ga.1984); see Hightower v. General Motors Corp., 175 Ga.App. 112, 332 S.E.2d 336, 339 (1985) (bad faith damages under O.C.G.A. Sec. 13-6-11 are not recoverable where there exists a bona fide controversy) (citing Jeff Goolsby Homes Corp. v. Smith, 168 Ga.App. 218, 308 S.E.2d 564 (1983)), aff'd, 255 Ga. 349, 338 S.E.2d 426 (1986). The issue of bad faith of an insurance company is a question of fact for the jury. Binns v. Metropolitan Atlanta Rapid Transit Authority, 250 Ga. 847, 301 S.E.2d 877, 878 (1983), aff'd, 252 Ga. 289, 313 S.E.2d 104 (1984). Once the jury has rendered its verdict on a bad faith claim, the scope of review is narrow: \"[T]he judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.\" Hendley v. American National Fire Insurance Co., 842 F.2d 267, 269 (1988) (quoting Colonial Life and Accident Insurance Co. v. McClain, 243 Ga. 263, 253 S.E.2d 745, 746 (1979)).\n \n \n 22\n a. Missouri Action\n \n \n 23\n Defendants had a reasonable argument that Missouri law should control the interpretation and validity of the contract in the Missouri declaratory judgment action. Missouri was the forum state. It is generally rational to argue that the substantive law of the forum state should apply under the Restatement 's choice-of-law rules. Defendants also had a reasonable legal basis to bring the declaratory judgment action. This case involved claims for punitive damages. Under Missouri law, an insurance policy providing coverage for punitive damages violates public policy. Crull v. Gleb, 382 S.W.2d 17 (Mo.App.1964); accord Schnuck Markets, Inc. v. Transamerica Insurance Co., 652 S.W.2d 206 (Mo.App.1983). Therefore, defendants had a reasonable legal basis for arguing that, as a matter of Missouri law, these policies could not provide coverage for the punitive damages claimed by Teasdale.\n \n \n 24\n Teasdale's suit also involved claims for compensatory damages. Punitive damages are not compensatory in nature. See Schnuck Markets, Inc., 652 S.W.2d at 209. Although defendants did not have the duty to defend the claim for punitive damages if the insurance contracts could not provide coverage for such damages, defendants did have the duty to defend the claim for compensatory damages within coverage of the insurance policies if not barred by some other Missouri public policy. See Fidelity and Casualty Co. v. Wrather, 652 S.W.2d 245, 248-49 (Mo.App.1983).\n \n \n 25\n The tort of malicious prosecution under Missouri law contains an intent element. Sanders v. Daniel International Corp., 682 S.W.2d 803, 806-08 (Mo. banc 1984). Missouri law is unclear about whether liability for compensatory damages caused by intentional torts can be insured as a matter of public policy. In White v. Smith, 440 S.W.2d 497 (Mo.Ct.App.1969), the court held that \"caused by accident\" language in an insurance policy does not cover intentional torts. Accord, Keeler v. Farmers and Merchants Insurance Co., 724 S.W.2d 307 (Mo.App.1987). The courts in White and Keeler did state in dicta that it was against Missouri public policy for an insurer to insure against liability for intentional torts. See, e.g., White, 440 S.W.2d at 507 (\"as a matter of public policy, a liability insurance contract does not afford coverages for damage intentionally inflicted by the insured\").\n \n \n 26\n In light of these cases, we conclude that defendants had a good faith basis under Missouri law for bringing the Missouri declaratory judgment action to ascertain their rights and liabilities under these insurance contracts. The refusal to pay a disputed claim does not necessarily constitute bad faith. See Beacon Industries, Inc. v. Vanderbunt Concrete, Ltd., 172 Ga.App. 573, 323 S.E.2d 871, 874 (1984). Defendants had a reasonable argument that their policies did not provide coverage for the liability faced by American Family in Teasdale's suit. Defendants followed the sequence of actions the court in Hilde recommended an insurer take when the insurer discovers a set of facts that may constitute non-coverage. Hilde, 362 S.E.2d at 72. There is no indication of improper motives in filing or in intervening in the Missouri declaratory judgment action. In these circumstances, we conclude that defendants did not act in bad faith as a matter of law. Consequently, we reverse the judgment in favor of American Family for attorney's fees expended in connection with the Missouri declaratory judgment action.\n \n \n 27\n b. Georgia Action\n \n \n 28\n In 1970, the Georgia Supreme Court ruled that damages caused by intentional torts were covered by an insurance policy containing the same language as the language used in Boston Old Colony's policy. Greenwood Cemetery, Inc. v. Travelers Indemnity Co., 238 Ga. 232 S.E.2d 910 (1970). Although the language of U.S. Fire's policy is not identical to that of the insurance policy addressed in Greenwood, in light of the principle of that decision and the principle that insurance contracts are to be construed in favor of the insured, Garmany, 785 F.2d at 945, it is clear that U.S. Fire did not have a reasonable basis as a matter of law under Georgia law to deny coverage. Therefore, if it had been clear that Georgia law controlled the interpretation and effect of the insurance policy, defendants would not have had a reasonable argument for denying coverage.\n \n \n 29\n At the time American Family filed the Georgia action, however, the Missouri declaratory judgment action was still pending. We have already concluded that defendants had a reasonable basis as a matter of law for filing that declaratory judgment action. The mere fact that American Family chose another forum in which to litigate the interpretation of its insurance contracts does not mean that defendants were obligated to relinquish the arguments they presented in the Missouri action. We conclude that defendants did not act in bad faith in denying coverage in the Georgia action in light of the pending Missouri action.4 Consequently, we reverse the entry of judgment in favor of American Family for expenses incurred in connection with the Georgia action.\n \n C. Prejudgment Interest\n \n 30\n The jury included prejudgment interest in its award of attorney's fees and expenses to American Family. Defendants argue that because these damages were not liquidated the jury could not award prejudgment interest. Under O.C.G.A. Sec. 7-4-15, a claimant is entitled to statutory interest on liquidated damages.5 A sum is liquidated under Georgia law when it becomes fixed and certain. See generally Buchanan v. Bowman, 820 F.2d 359, 362 (11th Cir.1987). In this case, American Family's demand for payment of attorney's fees did not become liquidated until judgment, because the amount of attorney's fees was not fixed and certain until that time. See Marathon Oil Co. v. Hollis, 167 Ga.App. 48, 305 S.E.2d 864 (1983). Consequently, the district court could not have awarded interest under section 7-4-15 in this case.\n \n \n 31\n Section 7-4-15 is not dispositive on the issue of prejudgment interest. Prejudgment interest on unliquidated damages in a breach of contract action is governed by O.C.G.A. Sec. 13-6-13.6 The award of prejudgment interest under section 13-6-13 is a matter for the jury's discretion; in contrast, an award of prejudgment interest is made by the judge as a matter of law under section 7-4-15. See United States on behalf of Delta Metals, Inc. v. R.M. Wells, 497 F. Supp. 541, 546 (M.D.Ga.1980); see generally Braner v. Southern Trust Insurance Co., 255 Ga. 117, 335 S.E.2d 547, 550 (1985). The district court properly allowed the jury to determine whether to award prejudgment interest on the unliquidated damages claimed by American Family as a result of Boston Old Colony's and U.S. Fire's breaches of their insurance contracts. See generally Casey Enterprises, Inc. v. American Hardware Mutual Insurance Co., 655 F.2d 598, 604 (5th Cir. Unit B 1981). The jury awarded prejudgment interest on each claim. This does not constitute error.\n \n D. Jury Instructions\n \n 32\n Boston Old Colony requested the district court to give the following instruction to the jury:\n \n \n 33\n \"I charge you that Boston Old Colony may not give American Family Life Assurance Company of Columbus, Georgia a unilateral notice of reservation of rights and thereupon proceed with a complete defense of the Teasdale v. American Family Life case absent American Family Life Assurance Company of Columbus, Georgia's express or implied consent. I charge you that if you find that American Family Life Assurance Company of Columbus, Georgia expressly or impliedly consented to the defense under reservation of rights, then American Family Life Assurance Company of Columbus, Georgia cannot recover the legal fees and expenses incurred in monitoring the defense provided by the Knipmeyer, McCann, Fish and Smith law firm.\" Richmond v. Georgia Farm Bureau Mutual Insurance Company, 140 Ga.App. 214 [215, 231 S.E.2d 245] (1976).\n \n \n 34\n The district court refused to give this instruction. Boston Old Colony argues this refusal constitutes reversible error.\n \n \n 35\n In order to obtain relief on an appeal from the district court's denial of a requested jury charge, appellant has the burden of showing that the charge actually given failed to instruct the jury adequately. See generally Dancey Co. v. Borg-Warner Corp., 799 F.2d 717, 721 (11th Cir.1986). Although a party has the right to have the jury instructed on the applicable law, a party does not have the right to any particular instruction. Corey v. Jones, 650 F.2d 803, 806 (5th Cir. Unit B 1981). The general rule is that if the entire charge as given adequately instructs the jury no harmful error is committed even though a portion of the charge may be imperfect. Allison v. Western Union Telegraph Co., 680 F.2d 1318, 1323 (11th Cir.1982). Boston Old Colony makes no showing that the charge given was inadequate. We conclude that Boston Old Colony has failed to demonstrate that the charge given failed to instruct the jury properly, or that Boston Old Colony suffered any prejudice from the district court's failure to give the requested instruction.\n \n E. Cross-Claim and Counterclaim\n \n 36\n Boston Old Colony filed a cross-claim against U.S. Fire for contribution and indemnification. The district court held that Boston Old Colony abandoned this claim by failing to present it to the jury. Additionally, the district court denied Boston Old Colony's cross-claim on the merits.\n \n \n 37\n Boston Old Colony cites no authority to support its position that it was entitled to prevail on its cross-claim. Although Boston Old Colony may have tendered policy limits, that tender did not relieve it of its obligation to provide a defense. See Anderson, 339 S.E.2d at 661. It may be that once Boston Old Colony satisfies its obligation to American Family it would have a right to contribution from U.S. Fire. That claim, however, is premature at this point in the litigation. We hold that the district court properly denied Boston Old Colony's cross-claim against U.S. Fire.\n \n \n 38\n U.S. Fire argued in a counterclaim to Boston Old Colony's cross-claim that Boston Old Colony, as the primary insurance carrier, had the primary duty to defend and that, because of that duty, Boston Old Colony alone should be liable for the costs incurred by American Family in providing its own defense. U.S. Fire also declined to submit this claim to the jury, and thus abandoned it. Additionally, U.S. Fire in its brief cites no authority to support its challenge to the district court's denial of its counterclaim. U.S. Fire's duty to defend arose when the lawsuit implicated the excess coverage policy. The fact that Boston Old Colony had a concurrent obligation did not, by itself, relieve U.S. Fire of its obligation to defend. We conclude that the district court correctly denied U.S. Fire's counterclaim.\n \n III. CONCLUSION\n \n 39\n The district court's entry of judgment in favor of American Family against Boston Old Colony and U.S. Fire in the amount of $294,930.80 for attorney's fees in the Teasdale suit (case 2) is AFFIRMED. The district court's entry of judgment in favor of American Family for attorney's fees on the basis of bad faith in the Missouri action (case 3) and in the Georgia action (case 4) is REVERSED. The case is REMANDED to the district court for recalculation of the prejudgment interest to be awarded to American Family. The district court's denial of Boston Old Colony's cross-claim against U.S. Fire is AFFIRMED. The district court's denial of U.S. Fire's counterclaim against Boston Old Colony is AFFIRMED.\n \n \n \n 1\n The policy provided:\n Underlying Insurance. If underlying insurance is exhausted by any occurrence, the company shall be obligated to assume charge of the settlement or defense of any claim against the insured resulting from the same occurrence, but only where this policy applies immediately in excess of such underlying insurance, without the intervention of excess insurance of another carrier.\n \n \n 2\n Even if a Missouri court would have applied Missouri law, defendants suffered no prejudice from the application of Georgia law. The substantive law of the two states is essentially the same. Under Missouri law, the tort of bad faith refusal to pay an insurance claim has been preempted by Rev.Stat.Mo. Sec. 375.420. See Halford v. American Preferred Insurance, 698 S.W.2d 40 (Mo.App.1985). Section 375.420 provides in pertinent part:\n If it appears from the evidence that such [insurance] company has refused to pay such loss without reasonable cause or excuse, the jury may, in addition to the amount thereof and interest, allow the plaintiff ... a reasonable attorney's fee and the court shall enter judgment for the aggregate sum found in the verdict.\n Missouri law contains the same basic principle as Georgia law: an insurance company cannot refuse to pay a claim without reasonable cause. Compare Hilde v. United States Fire Insurance Co., 184 Ga.App. 611, 362 S.E.2d 69, 71-72 (1987) with DeWitt v. American Family Mutual Insurance Co., 667 S.W.2d 700, 710 (Mo. banc 1984); Crewse v. Shelter Mutual Insurance Co., 706 S.W.2d 35 (Mo.Ct.App.1985).\n \n \n 3\n Defendants argue that O.C.G.A. Sec. 33-4-6 is the exclusive avenue in Georgia for an award of attorney's fees in disputes involving insurance contracts. Under O.C.G.A. Sec. 33-4-6, an insurance company must pay an insured attorney's fees and costs if the insurance company in bad faith fails to pay a claim within 60 days after demand. This section is designed to penalize insurance companies for denial or delay in the payment of claims unless good cause is shown. Georgia International Life Insurance Co. v. Harden, 158 Ga.App. 450, 280 S.E.2d 863 (1981). Defendants argue that section 33-4-6 does not authorize an award of attorney's fees in this case because plaintiff failed to make a demand to either insurance company. However, section 33-4-6 is not the exclusive avenue for recovery of attorney's fees in Georgia. O.C.G.A. Sec. 13-6-11 imposes liability for attorney's fees on a party in a contract action for bad faith or stubborn litigiousness. See Hilde v. United States Fire Insurance Co., 184 Ga.App. 611, 362 S.E.2d 69, 71-72 (1987); Glen Restaurant, Inc. v. West, 173 Ga.App. 204, 325 S.E.2d 781 (1984)\n \n \n 4\n Defendants also denied their obligation to pay attorney's fees in the Teasdale action. Defendants' obligation for attorney's fees was contingent upon their obligation with respect to coverage. Because we conclude defendants had a good faith reason to deny coverage, we also conclude that defendants had a good faith reason to deny liability for attorney's fees incurred by American Family in connection with Teasdale's suit\n \n \n 5\n That section provides: \"All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of demand.\"\n \n \n 6\n That section provides: \"In all cases where an amount ascertained would be the damages at the time of the breach, it may be increased by the addition of legal interest from that time until the recovery.\"\n \n \n ", "ocr": false, "opinion_id": 529405 } ]
Eleventh Circuit
Court of Appeals for the Eleventh Circuit
F
USA, Federal
407,101
null
1982-07-23
false
brown-v-taylor
Brown
Brown v. Taylor
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "685 F.2d 429" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/685/685.F2d.429.82-6307.html", "author_id": null, "opinion_text": "685 F.2d 429\n Brownv.Taylor\n 82-6307\n UNITED STATES COURT OF APPEALS Fourth Circuit\n 7/23/82\n \n 1\n E.D.Va.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 407101 } ]
Fourth Circuit
Court of Appeals for the Fourth Circuit
F
USA, Federal
278,104
Coleman, Dawkins, Per Curiam, Simpson
1967-12-15
false
luther-davis-v-united-states
null
Luther Davis v. United States
Luther DAVIS, Appellant, v. UNITED STATES of America, Appellee
Luther Davis, pro se., William Wayne Justice, U. S. Atty., Tyler, Tex., for appellee.
null
null
null
null
null
null
null
null
null
null
1
Published
null
<parties data-order="0" data-type="parties" id="b885-3"> Luther DAVIS, Appellant, v. UNITED STATES of America, Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b885-5"> No. 24922. </docketnumber><br><court data-order="2" data-type="court" id="b885-6"> United States Court of Appeals Fifth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b885-7"> Dec. 15, 1967. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b885-12"> Luther Davis, pro se. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b885-13"> William Wayne Justice, U. S. Atty., Tyler, Tex., for appellee. </attorneys><br><p data-order="6" data-type="judges" id="b885-14"> Before COLEMAN and SIMPSON, Circuit Judges, and DAWKINS, District Judge. </p>
[ "386 F.2d 837" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/386/386.F2d.837.24922_1.html", "author_id": null, "opinion_text": "386 F.2d 837\n Luther DAVIS, Appellant,v.UNITED STATES of America, Appellee.\n No. 24922.\n United States Court of Appeals Fifth Circuit.\n December 15, 1967.\n \n Luther Davis, pro se.\n William Wayne Justice, U. S. Atty., Tyler, Tex., for appellee.\n Before COLEMAN and SIMPSON, Circuit Judges, and DAWKINS, District Judge.\n PER CURIAM:\n \n \n 1\n This is an appeal from the denial of a motion1 to vacate a federal criminal conviction and judgment for breaking and entering a post office with intent to commit larceny therein in violation of 18 U.S.C.A. &#167; 2115.\n \n \n 2\n Of appellant's several contentions, only one need be considered, viz: that his plea of guilty was coerced by threats and beatings by a named state officer. The district court heard appellant's testimony and that of the officer in question, and found specifically that appellant's version of the facts was not worthy of belief. From a review of the record including the transcript of that hearing we conclude that the district court was not in error in finding that appellant's plea of guilty was understandingly and voluntarily made and was not the product of threats, beatings, or other coercive acts. We need not consider appellant's remaining allegations. United States v. Doyle, 2 Cir. 1965, 348 F.2d 715, certiorari denied 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84; Snipe v. United States, 9 Cir. 1965, 343 F.2d 25, certiorari denied, 382 U.S. 960, 86 S.Ct. 440, 15 L.Ed.2d 363; Benton v. United States, 9 Cir. 1965, 352 F.2d 59. The judgment of the district court is affirmed.\n \n \n \n Notes:\n \n \n 1\n 26 U.S.C. &#167; 2255\n \n \n ", "ocr": false, "opinion_id": 278104 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
2,707,102
Tyack
2013-12-10
false
madden-v-prod-concrete-inc
Madden
Madden v. Prod. Concrete, Inc.
null
null
null
null
null
null
null
null
null
null
null
null
1
Published
null
null
[ "2013 Ohio 5393" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/10/2013/2013-ohio-5393.pdf", "author_id": 8142, "opinion_text": "[Cite as Madden v. Prod. Concrete, Inc., 2013-Ohio-5393.]\n\n\n IN THE COURT OF APPEALS OF OHIO\n\n TENTH APPELLATE DISTRICT\n\nLarry Madden et al., :\n\n Plaintiffs-Appellants, :\n\nv. : No. 13AP-208\n (C.P.C. No. 12CV-4549)\nProduction Concrete, Inc., :\n (REGULAR CALENDAR)\n Defendant-Appellee. :\n\n D E C I S I O N\n Rendered on December 10, 2013\n\n\n Mark A. Adams, LLC, and Mark A. Adams, for appellants.\n\n Isacc, Brant, Ledman & Teetor, LLP, J. Stephen Teetor,\n James M. Roper and Maribeth Deavers, for appellee.\n\n APPEAL from the Franklin County Court of Common Pleas\nTYACK, J.\n {¶ 1} Plaintiff-appellant, Larry Madden was injured when a trench collapsed\nwhile he was repairing an underground sewer pipe. For the reasons that follow, we affirm\nthe judgment of the trial court granting summary judgment to defendant-appellee,\nProduction Concrete (\"PC\"), albeit for a different reason.\n {¶ 2} Madden was employed by non-party Madden Building and Remodeling\nwho, in 2006, originally installed the sewer pipe at the Creekside Communities\n\fNo. 13AP-208 2\n\n\ncondominium unit known as Building No. 1. The pipe was covered and not disturbed\nuntil 2007 when PC dug a large hole over the sewer pipe in order to install a water meter.\nFor purposes of summary judgment only, PC admitted it was negligent in installing the\nwater meter pit.\n {¶ 3} The first occupant to move into the building reported a sewer line back up\nin March 2008. The owners contacted Madden Building and Remodeling to repair the\nsewer line. The portion of the sewer pipe that was broken was approximately six to eight\nfeet below the surface. By use of shovels and a hose, Madden was able to determine that\nthe pipe was blocked in the vicinity of the water meter pit.\n {¶ 4} Madden and his co-workers began using a backhoe to expose more of the\npipe. They excavated a trench about four feet deep and three feet wide. Once the backhoe\nhad reached four feet of depth, Madden and his co-workers would enter the trench and\ndig two or three more feet with hand tools until they reached the pipe. As they\nprogressed, they would stop every six or seven feet to shore up the sides of the trench\nusing plywood and 4x4s along the banks.\n {¶ 5} When the cave-in occurred, about 15 feet of the trench had been shored up.\nThe backhoe had just excavated the next section when Madden entered the trench and\nbegan to hand-dig. Suddenly, the trench collapsed, severely injuring Madden.\n {¶ 6} Madden and his wife filed suit against PC, alleging negligence and loss of\nconsortium. Madden argued that PC negligently damaged the sewer pipe while installing\na water meter pit, and that as a direct and proximate result of PC's damage to the sewer\npipe, Madden was foreseeably injured while making the necessary underground repairs.\nMadden asserted that PC owed a legal duty to him based on the foreseeability of injury to\n\fNo. 13AP-208 3\n\n\na person making repairs, and is thus liable for the resultant damages that he claims were\ndirectly and proximately caused by PC's negligence.\n {¶ 7} PC moved for summary judgment on the basis that it did not owe any duty\nto Madden and that its negligent installation of the water meter was not the proximate\ncause of Madden's injuries.\n {¶ 8} The trial court found the existence of any duty owed to Madden to be\nquestionable, but on the record before it, could not rule out the possibility that PC owed a\nduty to Madden. For purposes of summary judgment, PC admitted it had negligently\nbroken the sewer line while installing or lowering the water meter underground.\nHowever, the court could not determine the likelihood of injury, the extent of PC's\nnegligence, and its effect on the likelihood of injury. The court instead granted summary\njudgment in favor of PC on the issue of proximate cause, finding PC's conduct was, at best,\na remote cause and that the proximate cause of Madden's injuries was the collapsing\ntrench.\n {¶ 9} This appeal followed. Madden assigns a single assignment of error for our\nconsideration:\n The trial court erred by granting appellee's motion for\n summary judgment and finding as a matter of law that\n appellee's negligence was a remote cause of appellant's\n injuries, without ever applying the law of proximate cause,\n and even though appellee's negligence was continuous and\n unbroken, and the harm to appellant as a result was\n foreseeable.\n\n {¶ 10} Appellate review of summary judgment motions is de novo. Helton v.\nScioto Cty. Bd. of Commrs., 123 Ohio App. 3d 158, 162 (4th Dist.1997). \"When reviewing a\ntrial court's ruling on summary judgment, the court of appeals conducts an independent\n\fNo. 13AP-208 4\n\n\nreview of the record and stands in the shoes of the trial court.\" Mergenthal v. Star Banc\nCorp., 122 Ohio App. 3d 100, 103 (12th Dist.1997). Civ.R. 56(C) provides that summary\njudgment may be granted when the moving party demonstrates that: (1) there is no\ngenuine issue of material fact, (2) the moving party is entitled to judgment as a matter of\nlaw, and (3) reasonable minds can come to but one conclusion, and that conclusion is\nadverse to the party against whom the motion for summary judgment is made. State ex\nrel. Grady v. State Emp. Relations Bd., 78 Ohio St. 3d 181, 183 (1997).\n {¶ 11} \"[N]egligence is conduct which falls below the standard established by law\nfor the protection of others against unreasonable risk of harm.\" 2 Restatement of the Law\n2d, Torts, Section 282 (1965). Negligence occurs when the defendant fails to recognize\nthat he owes a duty to protect the plaintiff from harm and that failure proximately\nresulted in injury or damage to the plaintiff. Di Gildo v. Caponi, 18 Ohio St. 2d 125, 127\n(1969); Kauffman v. First-Central Trust Co., 151 Ohio St. 298, 306 (1949). The elements\nof a claim of negligence are: (1) the existence of a legal duty owing from the defendant to\nthe plaintiff; (2) the defendant's breach of that duty; and (3) injury to the plaintiff\nproximately resulting from such failure. Wallace v. Ohio Dept. of Commerce, 96 Ohio\nSt.3d 266, 2002-Ohio-4210, ¶ 22, citing Mussivand v. David, 45 Ohio St. 3d 314, 318\n(1989). To recover, a plaintiff must also prove damages proximately resulting from the\nbreach. Horsley v. Essman, 145 Ohio App. 3d 438, 442 (4th Dist.2001), citing Jeffers v.\nOlexo, 43 Ohio St. 3d 140, 142 (1989).\n {¶ 12} The existence and conditions of a duty between two parties is determined\nby the nature of the relationship between them. Wallace at ¶ 23, citing Commerce &\nIndustry Ins. Co. v. Toledo, 45 Ohio St. 3d 96, 98 (1989). The duty element of negligence\nposes a question of law for the court to determine. Wallace at ¶ 22. \"[T]he existence of a\n\fNo. 13AP-208 5\n\n\nduty depends upon the foreseeability of harm: if a reasonably prudent person would have\nanticipated that an injury was likely to result from a particular act, the court could find\nthat the duty element of negligence is satisfied.\" Id. at ¶ 23, citing Texler v. D.O.\nSummers Cleaners & Shirt Laundry Co., 81 Ohio St. 3d 677, 680 (1998); Commerce,\nsupra; Menifee v. Ohio Welding Prods., Inc., 15 Ohio St. 3d 75, 77 (1984). Duty has also\nbeen described as \"the court's 'expression of the sum total of those considerations of\npolicy which lead the law to say that the particular plaintiff is entitled to protection.' \"\nWallace at ¶ 24, quoting Mussivand at 318, in turn quoting Prosser & Keeton, The Law of\nTorts, (4th Ed.1971), 325-26. Thus, there is no explicit formula for determining whether\na duty exists and the existence of a duty is largely dependent upon the facts and\ncircumstances present. See Payne v. Vance, 103 Ohio St. 59, 67 (1921).\n {¶ 13} Madden characterizes his injury as flowing directly from PC's negligence\nand as result, entirely foreseeable. First, he submits that PC's negligence in damaging the\nsewer line continued in an unbroken chain up to the point of the trench collapse. In other\nwords, Madden believes that since the damage was created underground, by necessity it\nrequired excavation to a certain depth to locate the break and to repair it. Further, the\ndamage could not have been detected until the sewer line became clogged after the units\nbecame occupied and the sewer system was used. Thus, Madden contends that the\nremoteness in time from the negligence to the injury was irrelevant. Finally, he asserts\nthat the fact that the trench collapsed some 50 feet from the broken line was due to the\npipe blockage extending under the street to where Madden dug the trench. For this\nreason, Madden argues there is no remoteness in space from the original act of negligence\nat the site of the water meter.\n\fNo. 13AP-208 6\n\n\n {¶ 14} PC argues that it did not owe a duty to Madden and that Madden assumed\nthe risk when he voluntarily entered into the trench. PC asserts that Madden assumed the\nrisk of excavating an unshored portion of four to six foot deep trench with hand tools, and\nthat is what proximately caused Madden's injuries.\n {¶ 15} In Anderson v. Ceccardi, 6 Ohio St. 3d 110 (1983), the Supreme Court of\nOhio held that the defense of secondary or implied assumption of risk has been merged\nwith the defense of contributory negligence under R.C. 2315.19. However, the court\nindicated that \"primary\" assumption of risk was not merged by reason of R.C. 2315.19. Id.\nat 114.\n {¶ 16} \" '[A]ssumption of risk in this form is really a principle of no duty, or no\nnegligence, and so denies the existence of any underlying cause of action. Without a\nbreach of duty by the defendant, there is thus logically nothing to compare with any\nmisconduct of the plaintiff.' \" Ratliff v. 20th Century Constr. Co., 11th Dist. No. 94-L-026\n(Sept. 30, 1994), quoting Prosser & Keeton, The Law of Torts (5th Ed.1984) 496-97. This\ntype of assumption of risk, wherein one reasonably waives or otherwise relieves another of\nliability acts as a complete bar to recovery. In Borchers v. Winzeler Excavating Co., 83\nOhio App. 3d 268, 271 (2d Dist.1992), the court stated as follows:\n \"Unreasonable assumption of risk sounds in negligence.\n Reasonable assumption of risk, entailing a reasonable and\n voluntary exposure to an obvious or known danger, sounds in\n waiver and consent-not fault. A plaintiff who reasonably\n chooses to proceed in the face of a known risk is deemed to\n have relieved defendant of any duty to protect him. See\n Vargus v. Pitman Mfg. Co. (E.D.Pa.1981), 510 F. Supp. 116,\n affirmed (1981), 673 F.2d 1301, rehearing denied (1982), 675\n F.2d 73; Smith v. Seven Springs Farms, Inc. (C.A.3, 1983),\n 716 F.2d 1002; Keegan v. Anchor Inns, Inc. (C.A.3, 1979), 606\n F.2d 35. This type of assumption of risk, wherein one\n\fNo. 13AP-208 7\n\n\n reasonably waives or otherwise relieves another of liability for\n injuries which might result from patently dangerous conduct\n or activities, is conceptually equivalent to express assumption\n of risk.\"\n\n {¶ 17} Traditionally applied to sporting events and recreational activities e.g.,\nGallagher v. Cleveland Browns Football Co., 74 Ohio St. 3d 427 (1996); Crace v. Kent\nState Univ., 185 Ohio App. 3d 534, 2009-Ohio-6898 (10th Dist.) (cheerleading), courts in\nOhio have also applied the doctrine to other inherently dangerous activities. French v.\nNew Paris, 12th Dist. No. CA2010-05-008, 2011-Ohio-1309 (installation of an antenna in\nproximity to high-voltage electric line); Ballinger v. Leaniz Roofing, Ltd., 10th Dist. No.\n07AP-696, 2008-Ohio-1421, ¶ 13 (ladder climbing). Cafferkey v. Turner Constr. Co., 21\nOhio St. 3d 110, 113 (1986) (construction site). Trenching is viewed by the courts as an\ninherently dangerous activity. Young v. Miller Bros. Excavating Co., 2d Dist. No. 11306\n(July 26, 1989); Abbott v. Jarrett Reclamation Servs., Inc., 132 Ohio App. 3d 729 (7th\nDist.1999).1\n {¶ 18} Here, Madden assumed the risk of excavating and trenching in order to\nexcavate the broken sewer pipe. While it may have been foreseeable that a negligently\nbroken sewer line would need excavation in order to repair it, under the doctrine of\nprimary assumption of risk, PC did not owe a duty to Madden.\n {¶ 19} \"Primary assumption of the risk requires an examination of the activity\nitself and not plaintiff's conduct. If the activity is one that is inherently dangerous and\nfrom which the risks cannot be eliminated, then a finding of primary assumption of risk is\n\n\n1\"Excavation and trenching are among the most hazardous construction operations.\" OSHA 2226 (Rev.\n2002). Excavations at https://www.osha.gov/Publications/OSHA2226/2226.html.\n\fNo. 13AP-208 8\n\n\nappropriate.\" Gehri v. Capital Racing Club, Inc., 10th Dist. No. 96APE10-1307 (June 12,\n1997). Primary assumption of risk is an absolute bar to recover in a negligence action.\nGallagher at 431.\n {¶ 20} In establishing primary assumption of risk and the concomitant lack of\nduty, the focus must remain on the lack of duty owed by the defendant. Gehri. Here, it\nwas not the activity of negligently installing the water meter that is at issue, but rather the\nactivity of excavating and trenching. Injury from trench collapses involves such obvious\ndangers and risks that Madden cannot establish the duty element of a prima facie case of\nnegligence.\n {¶ 21} Based on the foregoing, Madden's assignment of error is overruled, and the\njudgment of the Franklin County Court of Common Pleas is affirmed.\n Judgment affirmed.\n\n T. BRYANT, J., concurs.\n DORRIAN, J., concurs separately.\n\n T. BRYANT, J., retired, of the Third Appellate District,\n assigned to active duty under the authority of Ohio\n Constitution, Article IV, Section 6(C).\n\n\nDORRIAN, J., concurring separately.\n\n {¶ 22} I concur separately with the judgment of the majority. I do not believe every\ntrenching activity is, as a matter of law, an inherently dangerous activity. Even appellee\nstates:\n Repairing a clogged pipe is an everyday occurrence and not\n fraught with great risk of peril. Sometimes a buried pipe can\n be repaired without any excavation at all, but sometimes, as\n\fNo. 13AP-208 9\n\n\n here, excavation to expose the problem and to repair the clog\n is necessary. Excavations themselves are also common,\n everyday occurrences. Obviously, excavations can be, and\n usually are, safely made.\n\n(Emphasis sic.) (Appellee's brief, 15-16.) Nevertheless, given the dimensions of the\nparticular trenching in this case, I concur with the majority that the trenching here was\nan inherently dangerous activity.\n _________________________\n\f", "ocr": false, "opinion_id": 2707102 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
2,499,260
null
2012-03-08
false
state-v-wafford
WAFFORD
State v. WAFFORD
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "275 P.3d 968", "351 Or. 649" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n275 P.3d 968 (2012)\n351 Or. 649\nSTATE\nv.\nWAFFORD\nNo. (S059946).\nSupreme Court of Oregon.\nMarch 8, 2012.\nPetitions for Review Denied.\n", "ocr": false, "opinion_id": 2499260 } ]
Oregon Supreme Court
Oregon Supreme Court
S
Oregon, OR
1,419,054
Bryant, Campbell, Greene
2001-12-18
false
corbin-russwin-inc-v-alexanders-hardware-inc
null
Corbin Russwin, Inc. v. Alexander's Hardware, Inc.
CORBIN RUSSWIN, INC., Plaintiff v. ALEXANDER’S HARDWARE, INC., Defendant
Moore & Van Allen, P.L.L.C., by Andrew S. O’Hara and Carlos L. Pauling, for Plaintiff-Appellee. , Johnston, Allison & Hord, P.A., by Gary J. Welch and Kenneth Lautenschlager, for Defendant-Appellant.
null
null
null
null
null
null
null
null
null
null
10
Published
null
<parties id="b752-5"> CORBIN RUSSWIN, INC., Plaintiff v. ALEXANDER’S HARDWARE, INC., Defendant </parties><br><docketnumber id="b752-6"> No. COA00-1097 </docketnumber><decisiondate id="AkLB"> (Filed 18 December 2001) </decisiondate><br><attorneys id="b752-14"> <em> Moore &amp; Van Allen, P.L.L.C., by Andrew S. O’Hara and Carlos L. Pauling, for Plaintiff-Appellee. </em> </attorneys><br><attorneys id="b752-15"> <em> Johnston, Allison &amp; Hord, P.A., by Gary J. Welch and Kenneth Lautenschlager, for Defendant-Appellant. </em> </attorneys>
[ "556 S.E.2d 592", "147 N.C. App. 722" ]
[ { "author_str": "Bryant", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7992, "opinion_text": "\n556 S.E.2d 592 (2001)\nCORBIN RUSSWIN, INC., Plaintiff,\nv.\nALEXANDER'S HARDWARE, INC., Defendant.\nNo. COA00-1097.\nCourt of Appeals of North Carolina.\nDecember 18, 2001.\n*594 Moore &amp; Van Allen, P.L.L.C., by Andrew S. O'Hara and Carlos L. Pauling, Charlotte, for Plaintiff-Appellee.\nJohnston, Allison &amp; Hord, P.A., by Gary J. Welch and Kenneth Lautenschlager, Charlotte, for Defendant-Appellant.\nBRYANT, Judge.\nDefendant-appellant Alexander's Hardware, Inc., is a Connecticut corporation with its principal place of business in Connecticut. Plaintiff-appellee Corbin Russwin, Inc., is a Delaware corporation with its principal place of business in North Carolina. In its complaint, Corbin alleges that between 1993 and 1997, Alexander's ordered and received locks, keys, and other hardware from Corbin. No products were shipped to or from North Carolina. Alexander's accepted the goods, but failed to pay the entire balance.[1] In 1996, Alexander's executed a promissory note [Note] in favor of Corbin in the original principal amount. The Note contained the provision, \"This Note is to be governed and construed in accordance with the laws of the State of North Carolina....\" Alexander's mailed approximately four payments to Corbin in North Carolina, then defaulted on the Note.\nCorbin brought this action on 28 January 2000 in Superior Court in Mecklenburg County to recover for breach of contract, default and unjust enrichment. Alexander's filed a Motion to Dismiss on 3 April 2000, alleging that North Carolina courts do not have in personam jurisdiction over it.[2] On 7 July 2000, Corbin filed its Memorandum of Law in Opposition to Defendant's Motion to Dismiss for Lack of Personal Jurisdiction. The trial court, without stating findings of fact, denied the defendant's motion to dismiss for lack of in personam jurisdiction.\nThe sole issue before us is whether the trial court erred in denying the defendant's motion to dismiss for lack of in personam jurisdiction. We hold that the trial court erred in denying the defendant's motion. Accordingly, we reverse.\nNorth Carolina General Statute section 1-277(b) provides that the right of immediate appeal lies from an order denying a motion to dismiss for lack of in personam jurisdiction. N.C. Gen.Stat. § 1-277(b) (1999); Duke Univ. v. Bryant-Durham Elec. Co., Inc., 66 N.C.App. 726, 311 S.E.2d 638 (1984). The plaintiff has the burden of establishing by a preponderance of the evidence that the trial court has jurisdiction over the defendant. Church v. Carter, 94 N.C.App. 286, 289, 380 S.E.2d 167, 169 (1989). The judge is not required to make findings of fact to support a ruling on a *595 motion to dismiss, unless requested by the parties. Id. When the trial court does not make findings of fact, this Court, on appeal, presumes that there were sufficient facts to support the judgment. Id. This Court then determines whether there is competent evidence to support the presumed findings of fact. Id. at 289-90, 380 S.E.2d at 169.\nA two-step analysis applies when determining whether a court may exercise in personam jurisdiction over a non-resident defendant. First, is there statutory authority that confers jurisdiction on the court? Dillon v. Numismatic Funding Corp., 291 N.C. 674, 675, 231 S.E.2d 629, 630 (1977). This is determined by looking at North Carolina's \"long arm\" statute. Id. (referring to N.C. Gen.Stat. § 1-75.4 (1999)). Second, if statutory authority confers in personam jurisdiction over the defendant, does the exercise of in personam jurisdiction violate the defendant's due process rights? Id.\nWe first address the issue of statutory authority. North Carolina General Statute section 1-75.4(5)c provides in pertinent part that a North Carolina court has in personam jurisdiction over a defendant in an action that \"[a]rises out of a promise, made anywhere to the plaintiff ... by the defendant to deliver or receive within this State, or to ship from this State goods, documents of title, or other things of value....\" N.C. Gen. Stat. § 1-75.4(5)c (1999). North Carolina courts have construed \"other things of value\" to include money. Pope v. Pope, 38 N.C.App. 328, 330, 248 S.E.2d 260, 261 (1978). In this case, Alexander's signed a promissory note for valuable consideration. A promissory note for valuable consideration is sufficient to bring the defendant under the jurisdiction of the court pursuant to North Carolina's long arm statute.\nWe next address the issue of due process. The exercise of in personam jurisdiction must comport with due process. To comport with due process, the defendant must have minimum contacts in the forum state. Godwin v. Walls, 118 N.C.App. 341, 353, 455 S.E.2d 473, 482 (1995), rev. allowed, 341 N.C. 419, 461 S.E.2d 757 (1996). Minimum contacts must be such that the exercise of in personam jurisdiction \"does not offend `traditional notions of fair play and substantial justice.'\" Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940)). The defendant must have invoked the benefits and protections of the laws of the forum state by purposely availing himself of the privilege of doing business in that state. Godwin, 118 N.C.App. at 353, 455 S.E.2d at 482. \"This relationship between the defendant and the forum must be `such that he should reasonably anticipate being haled into court there.'\" Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 365, 348 S.E.2d 782, 786 (1986) (quoting World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980)).\nIn determining minimum contacts, the court looks at several factors, including: 1) the quantity of the contacts; 2) the nature and quality of the contacts; 3) the source and connection of the cause of action with those contacts; 4) the interest of the forum state; and 5) the convenience to the parties. Phoenix Am. Corp. v. Brissey, 46 N.C.App. 527, 530-31, 265 S.E.2d 476, 479 (1980). These factors are not to be applied mechanically; rather, the court must weigh the factors and determine what is fair and reasonable to both parties. Id. at 531, 265 S.E.2d at 479 (citing Farmer v. Ferris, 260 N.C. 619, 625, 133 S.E.2d 492, 497 (1963)). No single factor controls; rather, all factors \"must be weighed in light of fundamental fairness and the circumstances of the case.\" B.F. Goodrich Co. v. Tire King of Greensboro, Inc., 80 N.C.App. 129, 132, 341 S.E.2d 65, 67 (1986).\nIn the case before us, Alexander's sole retail store was in Ansonia, Connecticut. Alexander's never solicited business in North Carolina. It never advertised in North Carolina. It never shipped products to North Carolina, nor did it purchase materials or products from North Carolina. Finally, Alexander's never conducted any business in North Carolina. The parties executed the Note in Connecticut. Alexander's sole contact with this state was the mailing to North *596 Carolina of approximately four payments on the Note.\nCorbin argues that a single contract is sufficient to establish in personam jurisdiction. We disagree. While it is true that a single contract may sometimes be sufficient to establish in personam jurisdiction, Tom Togs, Inc., 318 N.C. at 367, 348 S.E.2d at 786, this is not always the case. As our Supreme Court stated in United Buying Group, Inc. v. Coleman, 296 N.C. 510, 251 S.E.2d 610 (1979), \"[T]he circumstances surrounding the signing of such obligation must be closely examined in each case to determine whether the quality and nature of defendant's contacts with North Carolina justify the assertion of personal jurisdiction over him in an action on the obligation.\" Id. at 518, 251 S.E.2d at 616.\nCorbin also argues that the Note expressly provided that it would be \"governed and construed in accordance with the laws of the State of North Carolina\" and thus, Alexander's purposely availed itself of the laws of this State. We disagree. The provision in the Note is a choice of law clause, which our Supreme Court explains \"names a particular state and provides that the substantive laws of that jurisdiction will be used to determine the validity and construction of the contract, regardless of any conflicts between the laws of the named state and the state in which the case is litigated.\" Johnston County v. R.N. Rouse &amp; Co., Inc., 331 N.C. 88, 92, 414 S.E.2d 30, 33 (1992). There are three types of provisions frequently used by contracting parties to avoid potential litigation concerning jurisdiction and governing law: 1) forum selection; 2) consent to jurisdiction; and 3) choice of law. Johnston County v. R.N. Rouse &amp; Co., 331 N.C. 88, 92, 414 S.E.2d 30, 33 (1992). One commentator who recognized the difficulty in distinguishing between the clauses offered this guidance:\n[1] A typical forum-selection clause might read: `[B]oth parties agree that only the New York Courts shall have jurisdiction over this contract and any controversies arising out of this contract.' ...\n[2] A ... `consent to jurisdiction' clause[ ] merely specifies a court empowered to hear the litigation, in effect waiving any objection to personal jurisdiction or venue. Such a clause might provide: `[T]he parties submit to the jurisdiction of the courts of New York.' Such a clause is `permissive' since it allows the parties to air any dispute in that court, without requiring them to do so.\n[3] ... A typical choice-of-law provision provides: `This agreement shall be governed by, and construed in accordance with, the law of the State of New York.'\nJohnston County v. R.N. Rouse &amp; Co., 331 N.C. 88, 93, 414 S.E.2d 30, 33 (1992) (non-numbered alterations in original) (quoting Leandra Lederman, Note, Viva Zapata!: Toward a Rational System of Forum Selection Clause Enforcement in Diversity Cases, 66 N.Y.U. L.Rev. 422, 423 n. 10 (1991)).\nBlack's Law Dictionary also provides guidance. A forum selection clause is \"[a] contractual provision in which the parties establish the place (such as the country, state, or type of court) for specified litigation between them.\" Black's Law Dictionary 665 (7th ed.1999). Choice of jurisdiction (a.k.a., consent to jurisdiction), on the other hand, is \"[t]he choice of the state (or country) that should exercise jurisdiction over a case.\" Id. at 234, 414 S.E.2d 30. A choice-of-law clause is \"[a] contractual provision by which the parties designate the jurisdiction whose law will govern any disputes that may arise between the parties.\" Id. To summarize, a forum selection clause designates the venue, a consent to jurisdiction clause waives personal jurisdiction and venue, and a choice of law clause designates the law to be applied.\nIn the case at bar, the provision in the Note stated, \"This Note is to be governed and construed in accordance with the laws of the State of North Carolina....\" This provision is very similar to the choice of law example stated in R.N. Rouse. Corbin argues that the choice of law clause is a pivotal factor in determining whether the trial court had in personam jurisdiction. In support of this argument, Corbin cites a section of Inspirational Network, Inc. v. Combs, 131 N.C.App. 231, 241, 506 S.E.2d 754, 761-62 (1998), which states that \"[a] factor in determining *597 fairness concerning a breach of contract... is whether the contract expressly provides that the law of the forum state would apply to actions arising out of the contract.\" (alterations in original) (citing Cherry Bekaert &amp; Holland v. Brown, 99 N.C.App. 626, 635, 394 S.E.2d 651, 657 (1990)).\nCorbin's reliance on Inspirational Network is misguided. In that case, Inspirational Network, Inc., [INSP], a cable network, provided advertising and television programs. Merchant Square Network, Inc. [MSN] entered into a contract with INSP to air \"infomercials.\" When MSN defaulted on payments to INSP in North Carolina, it executed a promissory note providing that, inter alia, the note was \"to be governed and construed in accordance with the laws of the State of North Carolina.\" Inspirational Network, 131 N.C.App. at 233, 506 S.E.2d at 757. After making several payments on the note, MSN defaulted. INSP sued MSN's president and chief executive officer, as well as its chief financial officer [the defendants]. The defendants moved to dismiss for lack of in personam jurisdiction. The trial court denied the motion, and the defendants appealed. In affirming the trial court's decision, this Court found jurisdiction under this State's long arm statute and minimum contacts to satisfy due process requirements. The minimum contacts requirement was satisfied because the CFO made numerous phone calls to North Carolina, MSN's programs were aired in North Carolina and MSN voluntarily entered into a contractual arrangement with INSP, a North Carolina corporation.\nThe Inspirational Network Court noted that the provision that the promissory note would be \"governed and construed in accordance with the laws of the State of North Carolina\" was a factor in determining the fairness of the breach of contract. Id. at 241-42, 506 S.E.2d at 761-62. Thus, reading Inspirational Network and R.N. Rouse together, it becomes clear that: 1) the clause in the contract in Inspirational Network was a choice of law clause; and 2) a choice of law clause is a factor in determining the issue of minimum contacts and due process, but not determinative of the issue of in personam jurisdiction.\nLike the promissory note in Inspirational Network, the Note in the case sub judice contains a choice of law provision but no choice of, or consent to jurisdiction provision. However, unlike Inspirational Network, the only contact Alexander's had with North Carolina was the mailing to this State of approximately four payments on the Note. Therefore, we must rely solely on these payments to determine whether due process requirements have been met. We find that they have not. Other than the payments, we find nothing else to indicate that Alexander's purposely availed itself of the benefits and protections of the laws of North Carolina. This contact is too tenuous to avoid offending \"traditional notions of fair play and substantial justice.\" Accordingly, we reverse.\nReversed.\nJudges GREENE and CAMPBELL concur.\nNOTES\n[1] This fact is in dispute.\n[2] Alexander's filed a complaint on 10 May 2000 in Connecticut Superior Court, alleging violations of the Connecticut Franchise Act and Unfair Trade Practices Act, breach of contract and unjust enrichment.\n\n", "ocr": false, "opinion_id": 1419054 } ]
Court of Appeals of North Carolina
Court of Appeals of North Carolina
SA
North Carolina, NC
2,693,587
Froelich
2012-12-07
false
state-v-donaldson
Donaldson
State v. Donaldson
null
null
null
null
null
null
null
null
null
null
null
null
2
Published
null
null
[ "2012 Ohio 5792" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/2/2012/2012-ohio-5792.pdf", "author_id": 8090, "opinion_text": "[Cite as State v. Donaldson, 2012-Ohio-5792.]\n\n\n\n\n IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO\n\nSTATE OF OHIO :\n\n Plaintiff-Appellee : C.A. CASE NO. 24911\n\nv. : T.C. NO. 10CR1828\n\nRALPH E. DONALDSON : (Criminal appeal from\n Common Pleas Court)\n Defendant-Appellant :\n\n :\n\n ..........\n\n OPINION\n\n Rendered on the 7th day of December , 2012.\n\n ..........\n\nKIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.\nThird Street, 5th Floor, Dayton, Ohio 45422\n Attorney for Plaintiff-Appellee\n\nMARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro,\nOhio 45066\n Attorney for Defendant-Appellant\n\n ..........\n\nFROELICH, J.\n\n {¶ 1} Ralph Donaldson appeals from a judgment of the Montgomery\n\f 2\n\nCounty Court of Common Pleas, which found him guilty on his guilty plea of involuntary\n\nmanslaughter. The trial court sentenced him to a mandatory term of five years of\n\nimprisonment, to be served consecutively with his sentences in other cases.\n\n {¶ 2} For the following reasons, the judgment of the trial court will be affirmed.\n\n I\n\n {¶ 3} In 1997, Donaldson was indicted for one count of attempted murder and\n\none count of felonious assault for beating his female companion, Deborah Nooks, on\n\nDecember 31, 1996 (Case No. 97CR17). Donaldson pled guilty to attempted murder, with\n\nan agreed sentence of eight years, and the charge of felonious assault was dismissed. The\n\nState expressly reserved the right to pursue a charge of murder or another form of homicide\n\nif Nooks later died from her injuries. Donaldson did not appeal from his conviction.\n\n {¶ 4} Three days after his plea and sentence, Donaldson filed a motion to\n\nwithdraw his plea in which he argued that he was misled by his trial counsel into believing\n\nthat 1) the victim’s injuries were not likely to be fatal and 2) his agreement, as part of the\n\nplea bargain, that the State could subsequently prosecute him for murder or another\n\nhomicide was not likely to adversely impact him. The trial court denied Donaldson’s\n\nmotion to withdraw his plea, and Donaldson appealed. On appeal, we concluded that, as of\n\nthat time, Donaldson had not shown any prejudice, since the contingency described in the\n\nplea agreement by which he claimed to have been adversely affected had not yet\n\nmaterialized. State v. Donaldson, 2d Dist. Montgomery Nos. 16504, 17038, 1998 WL\n\n905686, * 3 (Sept. 4, 1998). We further stated that, if the contingency (Nooks’s death and\n\nthe State’s decision to charge Donaldson for a homicide) materialized, he could raise the\n\f 3\n\nissue at that time, i.e., “interposing this claim as a bar to his subsequent prosecution.” Id.\n\n {¶ 5} Nooks died on August 6, 2009, more than twelve years after Donaldson’s\n\nplea to attempted murder. Donaldson was indicted for her murder, and he filed a motion to\n\ndismiss, arguing that the new charge violated his right to be free from double jeopardy.\n\nFollowing a hearing, the trial court concluded that Donaldson’s claim that counsel had\n\nmisled him about the seriousness of the victim’s injuries at the time of his earlier plea lacked\n\ncredibility, that his plea to attempted murder with the understanding that the State could\n\npursue a more serious charge at a later date, if warranted, was knowingly, intelligently and\n\nvoluntarily made, and that the State was not barred from prosecuting him for Nooks’s\n\nmurder.\n\n {¶ 6} Pursuant to a plea agreement, Donaldson subsequently pled guilty to\n\ninvoluntary manslaughter, in violation of R.C. 2903.04(A), in exchange for an agreed\n\nmandatory sentence of five years, to be served consecutively to his sentence for attempted\n\nmurder in Case No. 97CR17 and to his sentences in two other Greene County cases.\n\n {¶ 7} Donaldson appeals from his conviction, raising two assignments of error.\n\n II\n\n {¶ 8} The first assignment of error states:\n\n Appellant’s conviction for involuntary manslaughter is in\n\n violation of the Double Jeopardy Clause of the Fifth Amendment to the\n\n United States Constitution.\n\n {¶ 9} Donaldson contends that the trial court erred in concluding that his\n\nprosecution for murder was not barred by the constitutional prohibition on double jeopardy.\n\f 4\n\n {¶ 10} We will assume, for purposes of this appeal, that Donaldson’s guilty plea to\n\ninvoluntary manslaughter does not preclude him from challenging, on double jeopardy\n\ngrounds, the State’s ability to bring this charge against him.\n\n {¶ 11} In State v. Sturgell, 2d Dist. Darke No. 1751, 2009-Ohio-5628, we stated:\n\n The double jeopardy clause protects against a second prosecution for\n\n the same offense after acquittal or conviction, and against multiple\n\n punishments for the same offense. North Carolina v. Pearce (1969), 395 U.S.\n\n 711, 89 S.Ct. 2072, 23 L.Ed.2d 656. In that regard, the double jeopardy\n\n clause generally forbids successive prosecutions and cumulative punishments\n\n for a greater and lesser included offense involving the same conduct. Brown\n\n v. Ohio (1977), 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187. Conviction on\n\n a lesser included offense generally bars subsequent prosecution for a greater\n\n offense. Id.; State v. Konicek (1984), 16 Ohio App.3d 17.\n\n ***\n\n However, a well recognized exception to the double jeopardy bar\n\n applies when one or more of the elements of the greater offense, such as the\n\n death of the victim, did not occur before the State concluded its prosecution\n\n on the lesser offense. In that circumstance, prosecution on the greater offense\n\n is not barred by double jeopardy. Brown v. Ohio, 432 U.S. at 169, fn7; Diaz\n\n v. United States (1912), 223 U.S. 442, 448-449, 32 S.Ct. 150, 56 L.Ed. 500;\n\n Konicek at 18; * * *.\n\nId. at ¶ 10, 15-17.\n\f 5\n\n {¶ 12} In support of his argument, Donaldson cites State v. Carpenter, 68 Ohio\n\nSt.3d 59, 623 N.E.2d 66 (1993), which held that the State cannot indict a defendant for\n\nmurder after the court has accepted a negotiated guilty plea to a lesser offense “unless the\n\n[S]tate expressly reserves the right to file additional charges on the record at the time of\n\ndefendant’s plea.” Id. at syllabus. This holding suggests that Donaldson’s prosecution was\n\npermissible, because the State did reserve the right to pursue additional charges. Carpenter\n\ndoes not support Donaldson’s position. Donaldson’s argument actually relies on our\n\nOpinion in his previous appeal, which stated that he could seek complete relief at the time of\n\na subsequent prosecution, if one arose, and which allowed the trial court to consider, at the\n\nlater date, whether he had been substantially misled by his attorney during the plea\n\nnegotiations.\n\n {¶ 13} Donaldson’s case comes before us in an unusual procedural posture. In\n\nresponse to his appeal from his unsuccessful motion to withdraw his plea to attempted\n\nmurder in the days after he was sentenced, we stated, in essence, that the issue was not ripe\n\nfor review, because at the time, neither we nor the trial court could know whether he would\n\nbe prejudiced by the plea provision to which he objected, i.e., the State’s reservation of the\n\nright to bring additional charges if the victim later died. But more directly, this case comes\n\nbefore us due to the trial court’s denial of Donaldson’s motion to dismiss the new charge on\n\ndouble jeopardy grounds. A post-sentence motion to withdraw a plea is reviewed under an\n\nabuse of discretion standard, and the defendant bears the burden of establishing a manifest\n\ninjustice. State v. Pritchett, 2d Dist. Montgomery No. 24183, 2011-Ohio-5978, ¶ 13, citing\n\nXenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6; Crim.R. 32.1. On\n\f 6\n\nthe other hand, we conduct a de novo review of a denial of a motion to dismiss an indictment\n\non the grounds of double jeopardy. State v. Gunnell, 2d Dist. Clark No. 09-CA-0013,\n\n2010-Ohio-4415, ¶ 54; State v. Betts, 8th Dist. Cuyahoga No. 88607, 2007-Ohio-5533, ¶ 20,\n\nciting In re Ford, 987 F.2d 334, 339 (6th Cir.1992). Under the circumstances presented in\n\nthis case, we will review the trial court’s factual findings regarding the circumstances\n\nsurrounding Donaldson’s earlier plea under an abuse of discretion standard, while reviewing\n\nthe legal question of whether the State was permitted to bring additional charges against\n\nDonaldson de novo.\n\n {¶ 14} Donaldson asserts that the evidence at the hearing on his motion to dismiss\n\nthe murder charge “clearly demonstrates” that he was, in fact, misled by trial counsel. Thus,\n\nhis argument depends on whether the trial court could have reasonably concluded that\n\nDonaldson had not been misled about the victim’s condition at the time of his original plea.\n\n {¶ 15} At the hearing, Donaldson testified that, when he entered his plea to\n\nattempted murder, he believed that “the victim was doing a lot better and [he] didn’t have\n\nnothing to worry about.” He claimed that he was informed of these alleged facts by his\n\nattorney. He claimed that he regretted his plea agreement “almost immediately” and began\n\ndrafting a motion to withdraw his plea because, at the sentencing hearing (which was held\n\nthe same day as his plea), the victim’s sister stated that Nooks was in “real bad shape” and\n\nhad “one foot in the grave.” Donaldson stated that he would not have taken the plea if he\n\nhad known that the victim was not “doing better” and “possibly might die.”\n\n {¶ 16} Donaldson’s attorney in Case No. 97CR17, Victor Hodge, also testified at\n\nthe hearing on Donaldson’s motion to dismiss. Hodge stated that the State was unwilling to\n\f 7\n\noffer a plea that did not include the stipulation that additional charges could be pursued if the\n\nvictim died, that he had explained the stipulation to Donaldson in their extensive discussions\n\nabout whether to take the plea, and that he had informed Donaldson that the State would also\n\nhave the right to pursue additional charges against him if the matter went to trial. Hodge\n\nremembered explaining to Donaldson that the longer the victim lived, the harder it would be\n\nfor the State to prove that her death was proximately caused by his actions. Hodge also\n\ntestified that he did not believe that Nooks was “in imminent danger of death” at the time of\n\nthe plea. He denied telling Donaldson that there was “nothing to worry about.” Hodge\n\nacknowledged that Nooks’s sister stated at the sentencing hearing that Nooks was\n\n“practically on her death bed,” but he testified that this statement was inconsistent with\n\nHodge’s own understanding of Nooks’s condition at that time.\n\n {¶ 17} In overruling Donaldson’s motion to dismiss, the trial court found\n\nDonaldson’s claim that his attorney had said that there was “nothing to worry about” lacking\n\nin credibility. The court concluded that counsel’s explanation of Donaldson’s risk was\n\nmore in keeping with Donaldson’s own statement at the hearing that counsel had said that\n\n“as long as the victim didn’t die from something I done, I didn’t have nothing to worry\n\nabout.” The trial court also noted that no evidence was presented at the hearing that, at the\n\ntime of the plea, the victim had been in imminent danger of death, and that the court “might–\n\nif it chose– avail itself of the unusual ability to infer” from Nooks’s survival for twelve years\n\nafter the plea that she had not, in fact, had “one foot in the grave” at the time of the plea.\n\nFor these reasons, the trial court found that Donaldson had not been misled and had entered\n\nhis plea to attempted murder knowingly, intelligently, and voluntarily. The trial court\n\f 8\n\nconcluded that the State was not barred from prosecuting Donaldson for murder.\n\n {¶ 18} Based on the evidence presented, the trial court reasonably concluded, as a\n\nmatter of fact, that Donaldson had not been misled when he entered his plea, which included\n\nthe State’s reservation of the right to bring additional charges. The trial court also properly\n\nconcluded, as a matter of law, that Donaldson’s prosecution for murder was not barred by\n\ndouble jeopardy, because a fact necessary to that charge – the victim’s death – did not exist\n\nwhen he was convicted of attempted murder. Sturgell, 2d Dist. Darke No. 1751,\n\n2009-Ohio-5628, ¶ 17.\n\n {¶ 19} The first assignment of error is overruled.\n\n III\n\n {¶ 20} Donaldson’s second assignment of error states:\n\n The trial court erred in failing to merge appellants’ involuntary\n\n manslaughter conviction with a prior conviction for attempted murder\n\n as the two convictions constitute allied offenses of similar import.\n\n {¶ 21} Donaldson asserts that his 1997 conviction for attempted murder and his\n\nconviction in the present case for involuntary manslaughter are allied offenses of similar\n\nimport, and that the trial court was precluded, on double jeopardy grounds, from imposing\n\nsentences for both offenses. He claims that the “convictions should have been merged into\n\na single conviction for which [he] has already served an eight-year prison sentence.”\n\n {¶ 22} In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,\n\nthe supreme court discussed at length the interplay among a defendant’s plea to multiple\n\nallied offenses, his agreement to recommend a sentence, and his ability to appeal from the\n\f 9\n\nimposition of the recommended sentence on the ground that the offenses were allied. The\n\nsupreme court observed that a defendant may appeal a sentence that is contrary to law, R.C.\n\n2953.08(A)(4); however, a sentence may not be appealed if 1) both the defendant and the\n\nState agree to the sentence, 2) the trial court imposes the agreed sentence, and 3) the\n\nsentence is authorized by law. R.C. 2953.08(D)(1). Id. at ¶ 16. A sentence is authorized\n\nby law and not appealable within the meaning of R.C. 2953.08(D)(1) only if it complies with\n\nall mandatory sentencing provisions. Id. at ¶ 20.\n\n {¶ 23} It is well established that there may be only one conviction for allied\n\noffenses of similar import, and thus, allied offenses must be merged at sentencing. Id. at ¶\n\n26; R.C. 2941.25(A) Because a trial court is prohibited from imposing individual\n\nsentences for counts that constitute allied offenses of similar import, a defendant’s plea to\n\nmultiple counts does not affect the court’s duty to merge those counts at sentencing. Id.\n\nEven if a sentence is jointly recommended by the parties and imposed by the court, an\n\nappellate court is not precluded from reviewing it if a sentence is imposed on multiple\n\ncounts that are allied offenses, because such a sentence is unauthorized by law. However,\n\nthe supreme court observed in Underwood that “nothing in this decision precludes the state\n\nand a defendant from stipulating in the plea agreement that the offenses were committed\n\nwith separate animus, thus subjecting the defendant to more than one conviction and\n\nsentence.” Id. at ¶ 29.\n\n {¶ 24} In Underwood, the defendant was indicted on and convicted of two counts\n\nof aggravated theft and two counts of theft. There was no discussion of allied offenses at\n\nthe sentencing hearing. On appeal, the parties did not seem to dispute that some of the\n\f 10\n\noffenses to which he pled no contest were allied offenses. Rather, the State’s argument\n\nfocused on a legal issue: whether a defendant who enters guilty or no contest pleas to allied\n\noffenses and agrees to a particular sentence has, by entering the plea, waived the right to\n\nargue on appeal that his sentence was unauthorized by law because allied offenses were not\n\nmerged.\n\n {¶ 25} Donaldson’s case differs from Underwood in that the parties expressly\n\nstipulated that Donaldson’s commission of involuntary manslaughter, with an underlying\n\noffense of felonious assault, was committed with a separate animus, and this was not an\n\nallied offense to the previous charge of attempted murder. The parties referenced\n\nUnderwood in making this stipulation, and it is clear that Donaldson understood that he\n\nwould be sentenced for an additional term beyond what he had already served for the\n\nattempted murder, i.e., there were be no merger. This is precisely the type of factual\n\nstipulation that the court in Underwood acknowledged as a means of addressing a\n\ndefendant’s potential “manipulation” of a plea agreement for a “more beneficial result”\n\nwhere allied offenses are involved. Under the circumstances presented in Donaldson’s case,\n\nthe trial court did not err in failing to merge the convictions for attempted murder and\n\ninvoluntary manslaughter.\n\n {¶ 26} The second assignment of error is overruled.\n\n IV\n\n {¶ 27} The judgment of the trial court will be affirmed.\n\n ..........\n\nGRADY, P.J. and DONOVAN, J., concur.\n\f 11\n\nCopies mailed to:\n\nKirsten A. Brandt\nMarshall G. Lachman\nHon. Gregory F. Singer\n\f", "ocr": false, "opinion_id": 2693587 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
1,254,478
Harold R. Banke
1998-06-10
false
deal-v-state
Deal
Deal v. State
Deal v. the State
Wayne L. Burnaine, for appellant., Daniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.
null
null
null
null
null
null
null
Reconsideration denied June 25, 1998
null
null
9
Published
null
<docketnumber id="b109-12"> A98A0333. </docketnumber><parties id="A1q"> DEAL v. THE STATE. </parties><br><citation id="b109-13"> (503 SE2d 288) </citation>
[ "503 S.E.2d 288", "233 Ga. App. 79" ]
[ { "author_str": "Harold", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7135, "opinion_text": "\n503 S.E.2d 288 (1998)\n233 Ga. App. 79\nDEAL\nv.\nThe STATE.\nNo. A98A0333.\nCourt of Appeals of Georgia.\nJune 10, 1998.\nReconsideration Denied June 25, 1998.\nCertiorari Denied November 20, 1998.\n*290 Wayne L. Burnaine, Lawrenceville, for appellant.\nDaniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.\n*289 HAROLD R. BANKE, Senior Appellate Judge.\nDavid Eric Deal was convicted of kidnapping with bodily injury, aggravated battery and aggravated assault. He enumerates 15 errors on appeal.\nThis case arose during the victim's early morning jog when Deal ran up to her. As she activated her hand-held alarm, he grabbed her and struck her on top of her head with a length of rebar pipe. He continued beating her on her head, shoulders, chest and arms, striking at least 50 blows. Eventually, she fell, and he dragged her into some nearby woods where he started beating her again. The attack lasted approximately 15 minutes, at which point the man fled, leaving the victim bleeding and dazed.\nShortly after her release from the hospital, a police investigator presented the victim with a six-person photographic lineup. The victim immediately picked Deal's brother, Kevin. After the investigator obtained an arrest warrant, he learned that Kevin was in a mental institution and that Deal, who lived in the vicinity of the attack, bore a marked family resemblance to Kevin. When Deal gave inconsistent stories about his actions at the time of the attack, the investigator conducted a live lineup. The victim identified Deal. Held:\n1. Deal enumerates as error the trial court's denial of his motion to suppress evidence of the photographic lineups, presumably as impermissibly suggestive.[1] The dispositive question in resolving this issue is whether the procedure used resulted \"`in a very substantial likelihood of irreparable misidentification.'\" Montgomery v. State, 210 Ga.App. 147, 148(3)(a), 435 S.E.2d 510 (1993). Here, the record shows the victim had ample opportunity to observe her attacker. She \"saw his face in full view\" during the 15-minute ordeal. The victim's testimony makes clear that her entire attention was on her attacker. She fully and accurately described his appearance to the investigator. At trial, she testified that \"[h]is face is burned into my memory. I see it every day. It's been almost two years and I know that is him. 100 percent sure. I'll never forget that face.\" She exhibited similar certainty during the lineup. Considering these factors, we must conclude that in the totality of the circumstances, the procedures used in this case were not so impermissibly suggestive that misidentification could be substantially likely. Isaacs v. State, 213 Ga.App. 379, 380-381(2), 444 S.E.2d 409 (1994).\nThe record refutes Deal's contention that he was taken into custody prior to the lineup on a pretextual arrest. The investigator testified that when he contacted Deal's probation officer he learned she was about to secure a warrant on Deal for failure to report and requested that she advise him when she did.\n2. Deal contends the trial court erred in denying his motion in limine seeking to suppress testimony of an inmate witness presumably on the ground that his Sixth Amendment rights were violated because the inmate, Warren Rhodes, was acting as an agent for the State when he elicited inculpatory statements from Deal. Deal sought to suppress his purported statement to Rhodes that he initiated the early morning attack with a pipe intending to drag the victim into the woods and rape her.\nThe record shows that Rhodes made the initial contact with the assistant district attorney in charge of this case. At that time, he already had the information at issue. Rhodes testified that law enforcement had no knowledge of his talks with Deal and in no way instigated his actions. These facts refute *291 Deal's argument. Burgan v. State, 258 Ga. 512, 515(5), 371 S.E.2d 854 (1988) (\"`An inmate who acts upon the expectation of an unpromised reward does not thereby become an agent for the state.'\").\n3. Deal maintains the trial court erred in admitting Rhodes' testimony because it was perjured and self-serving. He bases this contention on another inmate's testimony indicating that he saw Rhodes take some paperwork with Deal's name on it from Deal's locker. The other inmate, Conan Spence, testified that he then asked Rhodes if he was working on a lawsuit and Rhodes answered, \"[N]o, ain't a lawsuit, just some legal work ... I'm hoping ... will get me out of jail.\" Notwithstanding Deal's inference to the contrary, there is absolutely no evidence that the State knowingly used false testimony to obtain Deal's conviction. Compare Smith v. Zant, 250 Ga. 645, 651, 301 S.E.2d 32 (1983). Spence's testimony, which did not directly contradict Rhodes, simply raised a credibility issue for the jury to resolve and did not establish perjury. See Ward v. State, 205 Ga.App. 504, 507(3), 423 S.E.2d 288 (1992).\n4. The trial court did not abuse its discretion by denying Deal's motion for continuance and/or change of venue based on purportedly prejudicial pretrial publicity. OCGA § 17-7-150(a). Deal made no showing that the trial's setting was inherently prejudicial. Moore v. State, 224 Ga.App. 797, 799(3), 481 S.E.2d 892 (1997). Although Deal cited three newspaper articles printed in the month prior to trial and a news broadcast on three channels, the court found the publicity only \"minor,\" noting the absence of headlines and the small size of the articles back in the body of the paper. The trial court's review of the coverage did not reveal any extreme sensationalism. Id. at 800, 481 S.E.2d 892.\nNor did the jury selection process show actual prejudice. Moore, 224 Ga.App. at 799, 481 S.E.2d 892. Only eight venire members had been exposed to any media coverage about the case. Of those individuals, only two remembered enough about the coverage for Deal to seek their removal, and both were excused for cause. Because the trial court was able to seat a full panel of jurors untainted by pretrial publicity, Deal failed to show the prejudice necessary to justify a change of venue. Id. at 800, 481 S.E.2d 892. In light of these facts, we likewise find no abuse of discretion in denying Deal's motion for continuance. Curtis v. State, 212 Ga.App. 237, 238(2), 441 S.E.2d 776 (1994).\n5. Deal claims the jury was not fair and impartial because two members attended grade, middle, and high school with a defense witness, Amy Sheperd. These jurors did not respond when asked on voir dire whether they knew her. At the motion for new trial hearing, however, Deal presented Sheperd's affidavit which stated that she knew the jurors. In light of Deal's failure to present any evidence that the jurors at issue knew Sheperd, notwithstanding her purported acquaintance with them, he failed to establish juror misconduct or any concomitant harm from the error alleged. McLamb v. State, 176 Ga.App. 727, 729(3), 337 S.E.2d 360 (1985); see Holcomb v. State, 268 Ga. 100, 103(2), 485 S.E.2d 192 (1997).\n6. Deal claims the trial court erred by refusing to ask the jury about its possible exposure to news accounts of the trial broadcast on the second day of trial. In declining, the court presumed that the jury had complied with its previous instruction to refrain from listening to trial coverage because Deal presented no evidence that this mandate had been violated. While the better practice in these circumstances would have been to question the jury about its media exposure, reversal is not required. See, e.g., Guess v. State, 264 Ga. 335, 338(6), 443 S.E.2d 477 (1994); Dent v. State, 220 Ga.App. 147, 148(2), 469 S.E.2d 311 (1996); Edwards v. State, 200 Ga.App. 580, 581(1), 408 S.E.2d 802 (1991). Deal's failure to present evidence at the motion for new trial hearing that any juror was exposed to the coverage precludes him from establishing harm caused by the alleged error. See Dennis v. State, 226 Ga.App. 390, 391(1), 486 S.E.2d 656 (1997); Mozier v. State, 207 Ga.App. 264, 268(2), 427 S.E.2d 551 (1993).\n7. The trial court did not abuse its discretion in denying Deal's motion for mistrial based upon prosecutorial overreaching and *292 bad faith by attempting to prejudice the jury through the news media. Edwards, 200 Ga.App. at 582(1), 408 S.E.2d 802. Deal presented no evidence of prosecutorial misconduct. See Parrish v. State, 160 Ga.App. 601, 604(3), 287 S.E.2d 603 (1981).\n8. The trial court did not abuse its discretion in denying Deal's motion for mistrial based upon the victim's statement, made while identifying Deal, that he had \"grown a mustache since he's been in jail.\" See Dorsey v. State, 204 Ga.App. 71, 418 S.E.2d 426 (1992). Deal maintains that this statement improperly placed his character in issue. Wright v. State, 253 Ga. 1, 4(3), 316 S.E.2d 445 (1984). We fail to see how the minor reference to Deal's incarceration on the instant charges placed his character in issue. See Holloway v. State, 190 Ga.App. 528, 529(2), 379 S.E.2d 542 (1989) (post-arrest mug shot is not suggestive of prior arrests so as to place defendant's character in issue). Moreover, the trial court gave a proper curative instruction to disregard the reference to the mustache. See Dorsey, 204 Ga.App. at 71, 418 S.E.2d 426. In these circumstances, we find no abuse of discretion.\n9. The trial court did not abuse its discretion in allowing the State to use an old aerial photograph of the area surrounding the crime scene as demonstrative evidence, particularly when the trial court gave cautionary instructions to the jury. Harvey v. State, 175 Ga.App. 120, 122(4), 332 S.E.2d 912 (1985). Defendants have no right to prevent the jury from seeing the crime scene. See Sorrells v. State, 267 Ga. 236, 239(3), 476 S.E.2d 571 (1996). Moreover, Deal fails to set out the legal argument supporting this enumeration in his brief, and the objection he cites in the record was not to the use of the photograph, but to a witness drawing power lines on it. McClain v. State, 226 Ga.App. 714, 718(3), 487 S.E.2d 471 (1997) (errors asserted for the first time on appeal are waived).\n10. Deal argues that the trial court erred in permitting the State's witness to draw power lines on the above-mentioned aerial photograph because there was insufficient evidence as to their correctness. Because Deal failed to challenge the accuracy of the lines in the trial court, we need not reach this issue. McClain, 226 Ga.Ap. at 718(3), 487 S.E.2d 471. Moreover, Deal failed to show how this demonstrative evidence harmed his case. See Keanum v. State, 212 Ga.App. 662, 663(2), 442 S.E.2d 790 (1994) (error and ensuing harm required for reversal).\n11. Deal maintains the trial court erred in admitting a graphic and prejudicial photograph of the initial wound to the top of the victim's head. Because the photograph was relevant to testimony regarding the nature and location of the victim's injuries, we must reject this argument. Sorrells, 267 Ga. at 239(3), 476 S.E.2d 571; Tiller v. State, 218 Ga.App. 418, 419(3), 461 S.E.2d 572 (1995).\n12. Deal maintains the trial court erred in admitting a length of rebar found near the crime scene with what appeared to be blood and hair on it. We disagree.\nTrial courts have broad discretion in the admission of evidence. Parker v. State, 226 Ga.App. 462, 463(4), 486 S.E.2d 687 (1997). \"A weapon is generally admissible if it is similar to one used in a crime, even though it is not the same one. [Cit.]\" Id. at 463-464(4), 486 S.E.2d 687. Here, the evidence showed the wounds were inflicted with a metal bar or pipe.\n13. This same reasoning applies to Deal's contention that the trial court erred in admitting a photograph of the above-mentioned rebar. Parker, 226 Ga.App. at 463(4), 486 S.E.2d 687.\n14. Deal claims the trial court erred in denying his motion for directed verdict of acquittal. Because the appellate brief offers no grounds, argument, or citation of authority in support of this assertion, the enumeration is deemed abandoned. Court of Appeals Rule 27(c)(2).\n15. Deal contends that his aggravated battery sentence merged with the sentence for kidnapping with bodily injury. The facts do not support this assertion. There was sufficient evidence for the jury to find that the aggravated battery was complete before Deal committed kidnapping with bodily injury. The aggravated battery concluded *293 when Deal delivered the initial blow to the top of the victim's head, a wound so seriously disfiguring that Deal objected to the admission of photographs depicting it. OCGA § 16-5-24(a). The kidnapping with bodily injury occurred later, when Deal dragged the victim, weakened by the onslaught of blows, into the woods and continued to beat her. OCGA § 16-5-40(a); Robinson v. State, 210 Ga.App. 175, 176(2), 435 S.E.2d 466 (1993); see Ellis v. State, 181 Ga.App. 630, 634(5), 353 S.E.2d 822 (1987).\nJudgment affirmed.\nBEASLEY and RUFFIN, JJ., concur.\nNOTES\n[1] This enumeration and several others do not clearly state the legal grounds of error. They simply state facts and then list cases without incorporating any legal argument. See Court of Appeals Rule 27(c)(2).\n\n", "ocr": false, "opinion_id": 1254478 } ]
Court of Appeals of Georgia
Court of Appeals of Georgia
SA
Georgia, GA
283,018
Ely, Jertberg, Taylor
1969-04-21
false
william-lorin-borchert-v-united-states
null
William Lorin Borchert v. United States
William Lorin BORCHERT, Appellant, v. UNITED STATES of America, Appellee
Sander L. Johnson (appeared), Harold B. Bernson, Los Angeles, Cal., for appellant., Ronald S. Morrow (appeared), Asst. U. S. Atty., Wm. M. Byrne, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Los Angeles, Cal., for appellee.
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Certiorari Denied April 21, 1969.
See 89 S.Ct. 1466.
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5
Published
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<parties id="AP4"> William Lorin BORCHERT, Appellant, v. UNITED STATES of America, Appellee. </parties><br><docketnumber id="b795-15"> No. 22381. </docketnumber><br><court id="b795-16"> United States Court of Appeals Ninth Circuit. </court><br><decisiondate id="b795-17"> Dec. 31, 1968. </decisiondate><br><otherdate id="b795-18"> Certiorari Denied April 21, 1969. </otherdate><br><seealso id="b795-19"> See 89 S.Ct. 1466. </seealso><br><attorneys id="b796-10"> <span citation-index="1" class="star-pagination" label="736"> *736 </span> Sander L. Johnson (appeared), Harold B. Bernson, Los Angeles, Cal., for appellant. </attorneys><br><attorneys id="b796-11"> Ronald S. Morrow (appeared), Asst. U. S. Atty., Wm. M. Byrne, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Los Angeles, Cal., for appellee. </attorneys><br><judges id="b796-12"> Before JERTBERG and ELY, Circuit Judges, and TAYLOR, <a class="footnote" href="#fn*" id="fn*_ref"> * </a> District Judge. </judges><div class="footnotes"><div class="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b796-20"> Hon. Fred M. Taylor, United States District Judge, for the District of Idaho, sitting by designation. </p> </div></div>
[ "405 F.2d 735" ]
[ { "author_str": "Taylor", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/405/405.F2d.735.22381.html", "author_id": null, "opinion_text": "405 F.2d 735\n William Lorin BORCHERT, Appellant,v.UNITED STATES of America, Appellee.\n No. 22381.\n United States Court of Appeals Ninth Circuit.\n December 31, 1968.\n Certiorari Denied April 21, 1969.\n \n 1\n See 89 S. Ct. 1466.\n \n \n 2\n Sander L. Johnson (appeared), Harold B. Bernson, Los Angeles, Cal., for appellant.\n \n \n 3\n Ronald S. Morrow (appeared), Asst. U. S. Atty., Wm. M. Byrne, U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Los Angeles, Cal., for appellee.\n \n \n 4\n Before JERTBERG and ELY, Circuit Judges, and TAYLOR,* District Judge.\n \n TAYLOR, District Judge:\n \n 5\n Appellant has appealed from a judgment of conviction, upon the verdict of a jury, on a one count indictment charging him with robbery of a National Bank in violation of Title 18, United States Code, Section 2113(a).\n \n \n 6\n The specification of error relied on by appellant is that the District Court erred in denying appellant's motion for a new trial upon the ground that he was deprived of a fair trial and denied effective aid of counsel within the meaning of constitutional rights afforded him.\n \n \n 7\n The questions presented are (1) whether the totality of the circumstances surrounding the trial deprived appellant of a fair trial within the meaning of due process of law and (2) whether the presentation of evidence and testimony on behalf of appellant was sufficiently adequate so as to constitute a fair trial within the meaning of due process of law.\n \n \n 8\n The appellant was arrested on March 15, 1967, the evening of the robbery, and soon thereafter was placed in a lineup for identification purposes without the benefit of counsel. He contends, with particular reference to the lineup, that he did not receive a fair trial. He asserts that the physical characteristics of the other three persons appearing with him in the lineup were very dissimilar to his. He also claims that he did not intelligently waive his right to having counsel present during the lineup.\n \n \n 9\n In support of his contention, appellant relies on language contained in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Gilbert v. State of California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Appellant correctly recognizes that Stovall, decided the same date as Wade and Gilbert, holds that the rule announced in Wade shall not be retroactive to lineups held prior to June 12, 1967. He argues that regardless of the holding in Stovall the reasoning of the Supreme Court makes the principles announced in all three cases applicable here. He claims that the holding of the lineup colored his entire trial to the extent that he was denied due process of law. After reviewing the trial record we do not agree.\n \n \n 10\n In Wade, supra, it was held that a lineup is a critical stage of the proceedings and that a defendant has a right to have an attorney present at the lineup. Wade also held that a defendant is not denied a fair trial if the in-court identification had an independent source, or the introduction of the evidence was harmless error.\n \n \n 11\n In Stovall, supra, it is stated that a man may demonstrate that the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. Since Wade is not applicable here it was incumbent on appellant under Stovall to show that he was denied due process of law because of the lineup identification.\n \n \n 12\n It is abundantly clear from the evidence in this case that the identification of appellant was not dependent on the lineup. Furthermore, there is no evidence in the record that demonstrates or indicates that the confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification so as to deny appellant due process of law.\n \n \n 13\n The appellant was identified as the robber by Mrs. Corey, an employee of the bank, who did not attend the lineup. She was standing near Mrs. Canada, the person robbed, and at the trial positively identified appellant as the robber. Also, the palm print of appellant was \"lifted\" from Mrs. Canada's teller window in the bank. This evidence in and of itself was sufficient to convict appellant independent of the lineup.\n \n \n 14\n At the trial Marjorie Jones, assistant cashier at the bank, identified the appellant as the man she saw robbing the bank and the person that she and Mrs. Hastie had previously observed outside the bank during their lunch hour. She testified that his activities were so peculiar that she dictated a description of appellant and his car to Mrs. Hastie. Miss Jones was positive that the man she observed outside the bank was the one who later entered the bank and received change from Mrs. Hastie. Miss Jones related that she observed the appellant for approximately forty-five minutes during her lunch hour on the day of the robbery, that he was the man she observed at Mrs. Hastie's window and the one who robbed Mrs. Canada.\n \n \n 15\n Mrs. Hastie identified appellant as the man she and Marjorie Jones observed during their lunch hour. She also testified that she recorded a description of the appellant and his automobile, that he came to her window for change, and about ten minutes later he came through the rear door wearing glasses and a hat and walked towards Marie Canada's window. The victim of the robbery, Mrs. Canada, in identifying appellant stated: \"I am just positive it is the man. The whole time I was being robbed I looked right into his face, and there isn't any doubt in my mind.\" In addition Mr. Kieffer, manager of the bank, and Mr. Zimmerman, assistant cashier, did not identify the appellant at the trial but testified that the robber left the bank and entered the automobile described by other witnesses as the automobile the appellant was seen in prior to the robbery and the one appellant admitted he drove off in.\n \n \n 16\n Appellant admitted doing certain things prior to the robbery as related by Jones and Hastie and admitted that he obtained change from Hastie at a teller window near the front of the bank as stated by Jones and Hastie. He denied being at the window of the teller who was robbed even though his palm print was \"lifted\" from that window. Appellant admitted that he was in the bank on the day of the robbery but, of course, he did not admit that he was the person who committed the robbery. He does not question the sufficiency of the evidence to prove his guilt.\n \n \n 17\n The trial record clearly shows that in the entire context of the proceedings against appellant, with particular reference to the lineup to which he was subjected, he did receive a fair trial within the meaning of due process of law. The appellant was sufficiently identified as the person who committed the robbery by witnesses who did not attend the lineup and in addition, it was not shown that the witnesses who may have attended the lineup identified appellant as a result thereof. There is nothing in the record which indicates or suggests that appellant was mistakenly identified because of the lineup.\n \n \n 18\n Appellant contends that the presentation of evidence and testimony on his behalf was so inadequate that he was denied a fair trial within the meaning of due process of law. In substance he claims that he was denied the effective assistance of counsel. It is not uncommon for a defendant to find fault with his counsel after he is convicted. Appellant's principal criticism in regard to the adequacy of his trial counsel is that he did not present more witnesses on his behalf. According to appellant's affidavits these witnesses could have testified to his usual activities on Wednesday and what he did on the day of the robbery which was also Wednesday. He claims these witnesses could have testified concerning his attitude, emotions and state of mind in order to show possible motive or lack thereof for commission of the crime. These witnesses were not to be used to establish an alibi or to show times inconsistent with the case of the prosecution. It is reasonable to believe that at the time trial counsel did not consider the testimony of such witnesses relevant and admissible or for some other reason of no benefit to the defense of appellant. This may or may not have been correct. It has been held many times that hindsight is not the proper measure for determining the adequacy of representation by counsel, and it has been repeatedly held that the Constitution does not guarantee that counsel appointed for, or employed by, a defendant shall measure up to his notions of ability or competency. Sherman v. United States, 241 F.2d 329 (9 Cir. 1957). It is a well settled rule that relief from conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation. Williams v. Beto, 354 F.2d 698 (5 Cir. 1965); Bates v. Wilson, 385 F.2d 771 (9 Cir. 1967); Barba-Reyes v. United States, 387 F.2d 91 (9 Cir. 1967); Smith v. United States, 389 F.2d 564 (9 Cir. 1968).\n \n \n 19\n We have carefully examined the record of the trial and believe that trial counsel did a commendable job in representing appellant. The contention of lack of competent counsel at trial is without merit.\n \n \n 20\n The judgment is affirmed.\n \n \n \n Notes:\n \n \n *\n Hon. Fred M. Taylor, United States District Judge, for the District of Idaho, sitting by designation\n \n \n ", "ocr": false, "opinion_id": 283018 } ]
Ninth Circuit
Court of Appeals for the Ninth Circuit
F
USA, Federal
1,389,567
Rooney, C.J., and Thomas, Rose, Brown and Cardine
1984-07-20
false
bishop-v-state
Bishop
Bishop v. State
Michael Lynn BISHOP, Appellant (Defendant), v. the STATE of Wyoming, Appellee (Plaintiff)
Leonard D. Munker, State Public Defender, and Sylvia Lee Haekl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant., A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., Cheyenne, for appellee.
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Rehearing Denied Aug. 9, 1984.
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59
Published
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<parties id="b294-3"> Michael Lynn BISHOP, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). </parties><br><docketnumber id="b294-6"> No. 83-157. </docketnumber><br><court id="b294-7"> Supreme Court of Wyoming. </court><br><decisiondate id="b294-8"> July 20, 1984. </decisiondate><br><otherdate id="b294-9"> Rehearing Denied Aug. 9, 1984. </otherdate><br><attorneys id="b295-24"> <span citation-index="1" class="star-pagination" label="243"> *243 </span> Leonard D. Munker, State Public Defender, and Sylvia Lee Haekl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant. </attorneys><br><attorneys id="b295-25"> A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., Cheyenne, for appellee. </attorneys><br><judges id="b295-26"> Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ. </judges>
[ "687 P.2d 242" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n687 P.2d 242 (1984)\nMichael Lynn BISHOP, Appellant (Defendant),\nv.\nThe STATE of Wyoming, Appellee (Plaintiff).\nNo. 83-157.\nSupreme Court of Wyoming.\nJuly 20, 1984.\nRehearing Denied August 9, 1984.\n*243 Leonard D. Munker, State Public Defender, and Sylvia Lee Hackl, Appellate Counsel, Wyoming Public Defender Program, Cheyenne, for appellant.\nA.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., Crim. Div., John Renneisen, Sr. Asst. Atty. Gen., and Margaret M. White, Asst. Atty. Gen., Cheyenne, for appellee.\nBefore ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.\nBROWN, Justice.\nAppellant Michael Lynn Bishop was charged by an information with two counts of burglary in violation of § 6-7-201(a)(i), W.S. 1977. Count I alleged that appellant committed a burglary on December 22, 1980, and Count II alleged that appellant committed another burglary on February 25, 1982. Appellant pled not guilty to both counts.\nAppellant filed a motion to sever the two counts for the purposes of trial contending prejudice and because the two charges were remote in time. The trial court denied the motion to sever. Appellant also filed a motion in limine asking the court to preclude the state from introducing evidence of prior bad acts which included evidence of theft, receiving stolen property and burglary. This motion was also denied. Appellant was found guilty of both counts and sentenced to the penitentiary. *244 The court further required that appellant pay restitution on both counts. Appellant claims that the trial court erred in admitting evidence of prior acts of misconduct, in denying the motion to sever, and in imposing restitution as a post-incarceration condition.\nWe will affirm in part and reverse in part.\nAppellant first argues that the trial court erred in admitting evidence of prior acts of misconduct and of unrelated, unsolved burglaries. On appeal deference is given to a trial court's determination concerning the admissibility of evidence. As long as there is a legitimate basis for a court's decision we cannot say that there was an abuse of discretion. Ortega v. State, Wyo., 669 P.2d 935 (1983). To resolve this issue we will examine the evidence admitted at trial and Rule 404(b), Wyoming Rules of Evidence.\nAppellant objects to the evidence and testimony admitted under Rule 404(b) because it tends to involve and incriminate him in other unrelated incidents. The evidence objected to relates to three burglaries in Laramie, Wyoming, with which appellant was not charged. The sequence of events involving the Laramie burglaries is: December 22, 1980 — Burgess residence burglarized (Count I); March 20, 1981 — Boswell residence burglarized; September 30, 1981 — Bentley and McCue residences burglarized; and February 25, 1982 — McNiff residence burglarized (Count II).\nThe Burgess home was broken into sometime between 1:00 p.m. and 6:30 p.m. on December 22, 1980. The back door to the house had been forcibly opened and left ajar. The house looked in order but the Burgesses discovered that silverware, jewel boxes, pistols, coins and wristwatches were missing. One of the pistols had a serial number which matched the serial number on a pistol recovered from the Federal Pawn Shop in Denver on May 25, 1982. The individual who made the pawn was Michael L. Bishop.\nThe Boswell home was broken into between 8:00 a.m. and 3:30 p.m. on March 20, 1981. Entry was made through the ground-floor bedroom window at the back of the house. There were no fingerprints and nothing was disturbed in the house, but the sterling silver, some jewelry, and two sterling silver candlesticks were missing. At trial Mrs. Boswell identified the candlesticks as those taken from her home as well as she could without benefit of initials or a serial number. They were recovered on August 10, 1982, from a family in Cheyenne who had received them from Michael L. Bishop, a \"personal friend.\"\nThe Bentley burglary occurred between 2:00 p.m. and 3:00 p.m. on September 30, 1981. Entry was gained by forcing open the back door of the house. Very little was disturbed inside the house, but much of the Bentleys' jewelry and silverware had been taken.\nThe time of day the McCue burglary occurred on September 30, 1981, is unknown. The burglar entered through a sliding glass window at the back of the house. Again, little was disturbed but the McCues discovered almost all of their jewelry and a camera were missing. The silver was hidden in the kitchen.\nThe evidence which tends to tie appellant to the Bentley and McCue burglaries is the manner in which the burglaries were conducted, and the fact motel clerks had receipts that stated Michael L. Bishop stayed in Laramie September 29, 1981, and checked out September 30, 1981.\nThe next event, November 1, 1981, which tended to incriminate appellant is an automobile accident after which certain items were found in appellant's vehicle. The investigation of the accident revealed weapons, pistols, several items of jewelry, silverware, surgical rubber gloves, and a screwdriver.[1]\n*245 The fifth and final burglary occurred on or about February 25, 1982. This burglary is Count II of the information. The burglar entered through the back of the house at an unknown time of day by forcing open a back door. No fingerprints were found; however, a footprint was found and a plaster cast was made of the footprint. Items taken included a music box, a western pistol, two wristwatches, and meerschaum pipes. (All the McNiffs' silverware and jewelry were in their safe deposit box at the bank.)\nOn or about March 1, 1982, a music box similar in description to that taken from the McNiff residence was presented by Bishop to a New Mexico antique dealer. It was learned that Bishop had previously sold the antique dealer some sterling silver with a red stone in each handle, which was later determined to be stolen.\nIt was again learned that Bishop had registered at a Laramie motel on February 24, 1982, and checked out on February 25, 1982. This coincides with the McNiff burglary, and placed appellant in Laramie at the time of the burglary.\nBishop was being interviewed by the Laramie police on September 2, 1982, when Detective O'Malley noticed his boots. It was noted that he was wearing a pair of Dingo boots that had the same type of sole and were the same size as the plaster cast which the police had taken from the McNiff residence.\nFor evidence to be admissible at trial under Rule 404, W.R.E., it must also be relevant under Rule 402, W.R.E. Relevant evidence is defined in Rule 401, W.R.E., as \"evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\" Once it is determined that the evidence is relevant, it must then be determined if the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time as defined in Rule 403, W.R.E. If there is evidence of other crimes, wrongs, or acts, then it may only be admissible under Rule 404(b), W.R.E., and cannot be used to show the character of the accused or that the accused has a propensity to commit crimes such as those with which he is charged. Rule 404, W.R.E.\n\"Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.\" Rule 404(b), W.R.E.\nWyoming follows the general rule that evidence of other crimes, wrongs, or acts is normally not admissible in the trial of a criminal case. Elliott v. State, Wyo., 600 P.2d 1044 (1979). The general rule is codified in the first sentence of Rule 404(b). In applying the second sentence of the rule, however, we have adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs, or acts. See Ortega v. State, supra; Evans v. State, Wyo., 655 P.2d 1214 (1982); Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Hatheway v. State, Wyo., 623 P.2d 741 (1981); Grabill v. State, Wyo., 621 P.2d 802 (1980); Elliott v. State, supra. Such evidence is admissible if it is substantially relevant for other purposes, and its probative value outweighs its prejudicial effect. Grabill v. State, supra; and Elliott v. State, supra. See also 22 Wright and Graham, Federal Practice and Procedure: Evidence § 5239 (1978).\nFrom our detailed review of the record we believe that the Bentley and McCue burglaries do not tend to make appellant's guilt in the charged burglaries more probable. Evidence of other crimes may be used to show that the modus operandi of the other crimes matches the crime charged. This helps prove the defendant's guilt when the perpetrator of the other crimes is known, and therefore helps prove the defendant's guilt when he is the perpetrator *246 of the other crimes, and the other crimes are\n\"* * * unique or unusual, and similar in nature to the crime charged, or (whether unusual or not) very close in detailed resemblance to the crime charged (distinctively similar), then such crimes may be proven and the trier allowed to infer that the accused is probably the culprit, since the crime charged bears the mark of his handiwork. * * *\" 2 Louisell and Mueller, Rule 404, § 140, p. 142 (1978).\nBut, \"[i]n no event will evidence of other criminal acts be admissible unless a relationship between such acts and the defendant is established.\" 1 Wharton's Criminal Evidence, § 240, p. 532 (1972). The manner in which the Bentley and McCue burglaries were committed, while being similar, were not so unique as to warrant admission into evidence to prove the identity of the accused, the ultimate issue in this case. The fact that appellant was in Laramie at the time of these burglaries does not, without other evidence, prove that appellant committed the acts charged.\nAppellee claims that the evidence of the Bentley and McCue burglaries was not admitted to show the identity of the perpetrator of the crime but to show a plan, scheme or course of criminal conduct executed by appellant during the pertinent time period, December, 1980, through February, 1982. To allow evidence of other crimes to show a plan, scheme or course of criminal conduct, it must also be shown that there is a relationship between the crimes and the defendant. 1 Wharton's Criminal Evidence, supra. However, the relationship need not be as strong for evidence to be admissible to show plan, scheme or course of criminal conduct as it needs to be to show modus operandi or identity. United States v. Myers, 550 F.2d 1036 (5th Cir.1977). There are several factors to be determined if evidence of other crimes is admissible:\n\"(1) The proof of the other similar crimes must be plain, clear, and convincing.\n\"(2) The other crimes must not be too remote in time from the charged offense.\n\"(3) The evidence of the other crimes must be introduced for a purpose sanctioned by Rule 404(b) of the Federal Rules of Evidence.\n\"(4) The element of the charged offense that the evidence of other crimes is introduced to prove must be a material issue in the case.\n\"(5) There must be a substantial need for the probative value of the evidence of the other crimes.\" United States v. Myers, supra, at 1044-1045. See also Louisell &amp; Mueller, Rule 404, § 140 (1978).\nWhile the proof of the Bentley and McCue burglaries was plain, clear and convincing, there was too little circumstantial evidence to connect appellant to these two uncharged burglaries. The defect in the proofs is the identity of the perpetrator. It is clear that as a predicate to the introduction of extrinsic acts the prosecution must establish that the defendant committed them. United States v. Chilcote, 724 F.2d 1498 (11th Cir.1984); and United States v. Guerrero, 650 F.2d 728 (5th Cir.1981). Proof of identity is not required beyond a reasonable doubt, but a prima facie case is necessary in order to make extrinsic acts admissible. United States v. Chilcote, supra; United States v. Edwards, 696 F.2d 1277, 1280 (11th Cir.1983), cert. denied ___ U.S. ___, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); United States v. Dothard, 666 F.2d 498 (11th Cir.1982).\nEven though the evidence of the Bentley and McCue burglaries was improperly admitted it was harmless error. The admission of such evidence does not mandate reversal of a conviction in all instances. As the court said in United States v. Corey, 566 F.2d 429, 432 (2nd Cir.1977):\n\"* * * A nonconstitutional error, as in the case of erroneous admission of similar act evidence, is harmless if it is `highly probable' that the error did not contribute to the verdict. [Citation.] Where there is overwhelming evidence of guilt, as there was here, erroneous evidentiary *247 rulings on such collateral matters are often harmless. [Citations.]\"\nOther federal courts have also held that the improper admission of similar acts evidence under Rule 404, Federal Rules of Evidence, can be treated as harmless error. United States v. Chilcote, supra; United States v. Cross, 638 F.2d 1375 (5th Cir.1981); United States v. Bettencourt, 614 F.2d 214 (9th Cir.1980); and United States v. Bosch, 584 F.2d 1113 (1st Cir.1978).\nFor an error to be regarded as harmful, there must be a reasonable possibility that in the absence of the error, the verdict might have been more favorable to the defendant. Hoskins v. State, Wyo., 552 P.2d 342 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Because of the other evidence introduced against Bishop, we hold that there is not a reasonable possibility that the verdict would have been different. In its totality the other evidence introduced was overwhelming in the context of this case. This conclusion is further bolstered by the fact that the trial court gave an excellent instruction limiting the jury's use of the other crimes, acts or wrongs as evidence. In our view this mitigates potential prejudice caused by the evidence.\nWe hold also that it was not an abuse of discretion to admit into evidence the Boswell burglary and evidence concerning the contents of appellant's vehicle when it was involved in an accident investigated by the police.\nThe second issue we address is whether the trial court erred in denying appellant's motion for severance of the two counts. Rule 12, Wyoming Rules of Criminal Procedure, states:\n\"The court may order two (2) or more indictments or informations or both to be tried together if the offenses, and the defendants, if there is more than one (1), could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.\"\nThe burglary charges here were joined in the same information pursuant to Rule 11, W.R.Cr.P., and the motion to sever was brought pursuant to Rule 13, W.R. Cr.P. Hopkinson v. State, supra; and Tabor v. State, Wyo., 616 P.2d 1282 (1980). The evidence would have been the same had the charges been tried separately; therefore, there was no prejudice in trying them jointly.\nThe general rule in regard to joinder of offenses is that joinder is proper, absent compelling reasons for severance. Linn v. State, Wyo., 505 P.2d 1270 (1973), cert. denied 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 405, reh. denied 412 U.S. 944, 93 S.Ct. 2780, 37 L.Ed.2d 405.\n\"* * * Joint trials serve the public interest by expediting the administration of justice, reducing docket congestion, conserving judicial time as well as that of jurors along with avoiding the recall of witnesses to duplicate their performances.\" Jasch v. State, Wyo., 563 P.2d 1327, 1335 (1972).\nGranting or denying a motion for severance rests within the discretion of the trial court. Jasch v. State, supra; and Dobbins v. State, Wyo., 483 P.2d 255 (1971). We can see no reason to overrule the trial court's determination in this regard.\nThe third and final issue we address is whether the trial court erred in imposing restitution as a post-incarceration condition. We hold that this was error because there is no statute authorizing restitution when the defendant is sentenced to incarceration.\nSection 7-13-308, W.S. 1977, Cum.Supp. 1983, is the only statute which provides for a plan of restitution, and it applies only when the sentencing court orders a suspended imposition of sentence, a suspended sentence or probation. The statute does not allow for restitution as a post-incarceration condition.\nThe legislature is the body empowered to determine what crimes are punishable and prescribe punishment for those acts. The sentencing court has no power *248 to order post-incarceration restitution absent some statutory authority. Barnes v. State, Wyo., 670 P.2d 302 (1983).\nAs we reasoned in Barnes, the sentence may have been treated differently if the trial court had been persuaded that it could not impose restitution when the defendant was sentenced to incarceration. Therefore, we affirm the conviction, but reverse the sentence because it is not a lawful sentence. We remand for resentencing of the appellant in accordance with the law stated in this opinion.\nCARDINE, Justice, dissenting, with whom ROSE, Justice, joins.\nI dissent. Appellant was tried for two separate burglaries charged in a single information, said burglaries being alleged to have occurred on December 22, 1980 and February 25, 1982 in Laramie, Wyoming. The court received in this trial evidence of three other unsolved burglaries, one which occurred March 20, 1981 and two which occurred September 30, 1981. The facts concerning the five burglaries are as follows.\nThe first burglary with which appellant was charged occurred at the Burgess residence the afternoon of December 22, 1980. The back door had been forcibly opened and left ajar. Other than the broken door, the house looked in order and did not seem to be disturbed. Silverware, jewelry, and two pistols were taken. The back yard was fenced. The second burglary with which appellant was charged occurred at the McNiff house during the night of February 25, 1982 or the morning of February 26, 1982. A window in the back door had been broken. A pistol, two watches, a set of meerschaum pipes, a music box and three beers were taken. The house was left in disarray. The back yard was fenced.\nThe three unresolved burglaries received in evidence occurred at the Boswell, Bentley and McCue residences in Laramie, Wyoming. In the burglary at the Boswell house, entry was through an unlocked bedroom window in the basement sometime during the day of March 20, 1981. The house was not damaged. Silverware, jewelry and a set of candlesticks were taken. The back yard was fenced. The Bentley and McCue burglaries occurred the afternoon of September 30, 1981. Entry at the Bentley residence was through the back door; at the McCue residence, entry was through a dining room window. The houses were not disturbed. Silverware and jewelry were taken from the Bentley residence. Jewelry and a camera were taken from the McCue residence. Both back yards were fenced. Appellant was not identified as the perpetrator of the three unresolved burglaries.\nWe have previously held that the reason for not allowing inquiry into charges and accusations in which convictions did not result is that:\n\"`It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another.'\" Gabrielson v. State, Wyo., 510 P.2d 534, 536 (1973) (quoting from Rosencrance v. State, 33 Wyo. 360, 239 P. 952, 953 (1925)).\nWe also stated that:\n\"[I]t is settled law in this jurisdiction that mere charges, accusations, and arrests are consistent with innocence; and they should not be inquired into if the purpose of the prosecution is to discredit the witness in the eyes of the jury and convey to the jury knowledge that such witness was charged with a crime.\" Id. at 536.\nWe have previously upheld the introduction of other crimes, wrongs, or acts in connection with Rule 404(b), W.R.E., when submitted for purposes other than that the accused has criminal characteristics. Evans v. State, Wyo., 655 P.2d 1214 (1982) (motive); Hopkinson v. State, Wyo., 632 P.2d 79 (1981) (motive); Hatheway v. State, Wyo., 623 P.2d 741 (1981) (knowledge); Vasquez v. State, Wyo., 623 P.2d 1205 *249 (1981) (past pattern of conduct); Elliott v. State, Wyo., 600 P.2d 1044 (1979) (motive). We have allowed extrinsic evidence during rebuttal regarding identification and intent in Grabill v. State, Wyo., 621 P.2d 802 (1980), and when the defendant has opened the door by first offering testimony. Sanville v. State, Wyo., 593 P.2d 1340 (1979). In all of those cases the identity of the defendant as the perpetrator of the other acts received in evidence was not in dispute.\nIn the vast majority of cases which deal with the propriety of receipt of evidence of crimes other than the crime charged, the identity of the perpetrator of those other crimes is undisputed. In this case, however, the identity of the defendant as the perpetrator of the crimes was in dispute. Thus, the problems involved in determining admissibility were compounded: first, the evidence must make a prima facie case that the defendant was the perpetrator of the other burglaries; second, the evidence must be admissible under a Rule 404(b) exception; and third, if admission were proper, the probative value must not be outweighed by its prejudicial effect.\nAppellant was not charged with nor convicted of the three unsolved burglaries. With respect to the two burglaries of September 30, 1981, all that could be said was that appellant was in the town of Laramie on the date they occurred. So were approximately 20,000 other people in town on this date. The only testimony relating to appellant's involvement in the Boswell burglary was testimony from a motel clerk which placed him in Laramie at the time of the incident and the fact that he had candlesticks similar to those stolen which he had given to a friend. This evidence does not rise to the level of the requisite prima facie[1] case that appellant was in fact the perpetrator. State v. Jones, 27 Wyo. 46, 191 P. 1075 (1920). But even assuming, arguendo, that this testimony was sufficient to identify appellant, I would still find this evidence improperly admitted.\nTwo concerns are expressed by the first sentence of Rule 404(b) in that (1) the jury may convict a \"bad man\" who deserves to be punished, not because of the crime charged, but because of prior or subsequent misdeeds, and (2) that the jury might infer that because the accused has committed other crimes, he probably also committed this crime. United States v. Phillips, 599 F.2d 134 (6th Cir.1979).\nA defendant must be tried for what he did and not for who he is. United States v. Foskey, 636 F.2d 517 (D.C. Cir.1980).\n\"Rules 403 and 404(b) are not obstacles to be cleared at all costs, even by cutting around corners whenever it is possible to do so. These rules were designed to ensure a defendant a fair and just trial based upon the evidence presented, not upon impermissible inferences of criminal predisposition or by confusion of the issues.\" Id. at 525.\nFor other-acts evidence to be admissible, it must be relevant to an actual issue of the case tried. The probative value must not be outweighed by unfair prejudice. There is no presumption that other-crime evidence is relevant. United States v. DeVaughn, 601 F.2d 42 (2nd Cir.1979). See, United States v. Halper, 590 F.2d 422 (2nd Cir.1978). There must be a logical nexus between the crimes. United States v. Mann, 590 F.2d 361 (1st Cir.1978). The evidence must be offered for an issue that is in question. United States v. Ring, 513 F.2d 1001 (6th Cir.1975), 30 A.L.R.Fed. 860.\n\"Too often we lose sight of the fact that the rule is primarily a rule of exclusion of evidence and not one of admission, and, although there are many exceptions, these do not detract from the general exclusionary approach which the rule demands.\n\"Several factors have contributed to formulation of a cautious judicial attitude.\n\n*250 \"First, the accused is required to defend charges which are not described in the information or indictment. As a result he is required to defend past actions [for] which he may have in the past answered and with respect to which he may have even served his sentence. Thus, he is in effect tried as a recidivist though such a charge is not a part of the federal criminal code.\n\"Secondly, although such evidence may have at least some relevance to the offense being tried, its predominant quality is to show up the defendant's character as a car thief or a bad check artist, for example. Proof of defendant's sociopathic disposition is not a valid object. Showing that a man is generally bad has never been under our system allowable. The defendant has a right to be tried on the truth of the specific charge contained in the indictment.\n\"Third, an obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality. This is true regardless of the care and caution employed by the court in instructing the jury.\n\"Thus, it is clear that the problem is not a simple evidentiary one, but rather goes to the fundamental fairness and justice of the trial itself.\" (Footnote omitted.) United States v. Burkhart, 458 F.2d 201, 204-205 (10th Cir.1972).\nThe district court allowed the evidence on the theory that it related to identity. Rule 404(b) was incorrectly invoked on this basis. Admitting evidence for the purpose of identity requires an inference that if the defendant committed one crime, then in all probability, because of the unusual or distinctive nature of the crimes and the close similarity between them, he committed the second. These burglaries bore no special signature such as unusual mode of entry, time of occurrence, or special circumstances. They were so common as to be entirely unhelpful. Thus, the houses were entered when no one was at home, the entrances were not observed, the back yards were fenced, and easily \"fenced\" items were taken. These characteristics do not rise to the level of a \"signature,\" and the evidence has been held not admissible where\n\"[t]he conduct was not sufficiently `peculiar, unique or bizarre,' * * * nor was it so unusual or distinctive as to constitute * * * personal `signature' on each crime * * *.\" (Citations omitted.) United States v. Ezzell, 644 F.2d 1304, 1306 (9th Cir.1981).\n\"Where the alleged similarities between the crimes reveal little in common other than a sequence of time from the crime charged, the acts are not unusual and distinctive enough to come within the purview of the similarity element of the exception.\" State v. Case, Mont., 621 P.2d 1066, 1071 (1980).\nThe State, recognizing the weakness of relying on \"identity\" as a proper ground for admitting the other-crimes evidence, contends that the evidence was properly admissible under the \"common plan\" exception. When extrinsic acts are admitted to show a common plan, scheme or design, the evidence is admissible only if it is\n\"* * * `so linked together in point of time and circumstances with the crime charged that one cannot be shown without proving the other.' * * * Courts have admitted extrinsic act evidence to show a defendant's design or plan to commit the specific crime charged, but never to show a design or plan to commit `crimes of the sort with which he is charged.' * * * Thus, proof of design or plan by showing the commission of similar acts requires more than\n\"`merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. * * *'\" (Emphasis added; emphasis in original omitted.) United States v. Dothard, 666 F.2d 498, 502 (11th Cir.1982).\nThe common-plan theory must warrant an inference that if the defendant committed the other acts introduced, he committed the *251 act charged. People v. Hunt, 72 Cal. App.3d 190, 139 Cal. Rptr. 675 (1977). A common scheme or plan embraces the commission of two or more crimes which are so related to each other that the proof of one crime tends to establish the proof of the other. United States v. Weaver, 565 F.2d 129 (8th Cir.1977). These burglaries were totally separate incidents occurring over a fifteen-month period and not interrelated to the crimes charged. Proof of one did not relate to proof of the others.\n\"In permitting evidence of prior offenses to be received as a part of a common plan or scheme, we have come perilously close to putting the defendant's character and record in issue notwithstanding his failure to take the witness stand, as in the instant case.\" State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167, 171 (1965).\nI would agree with United States v. Phillips, supra:\n\"For the purpose of showing `intent and plan,' the district judge admitted testimony connecting the defendant with several bank robberies other than the robbery for which he was on trial. Something more than repeated performance of the same class of crimes is required in evidencing a `design' or `plan' which, if proved, may raise the inference that the accused was the perpetrator of the crime in question.\" 599 F.2d at 136.\nThe State attempts to bolster its argument by the theory that the other-crimes evidence was relevant to show a \"complete story\" and that the jury was entitled to know the complete story of appellant's activities during the period of December 1980 through February 1982. The State relies on the case State v. Tharp, 27 Wash. App. 198, 616 P.2d 693 (1980) for this proposition. However, they misread that case. In State v. Tharp, evidence was admitted of other criminal activity because the criminal acts were inseparable from the whole criminal scheme. The evidence was allowed because it consisted of a string of connected offenses and without it the prosecution could only present a fragmentary version of the entire transaction. The other acts admitted took place in a twenty-four hour period. In the present case the five burglaries took place over a fifteen-month period. They were not part of one transaction; admission of one crime did not present a more complete version of another burglary. Reliance upon this theory for admission of this other-crimes evidence is totally misplaced. And, it is impossible to tell which theory the majority relied upon for upholding the admission of evidence concerning the Boswell burglary since their entire analysis of that evidence consists of:\n\"We hold that it was not an abuse of discretion to admit into evidence the Boswell burglary * * *.\"\nI would find that the evidence in this case is in the nature of character evidence introduced to prove that appellant acted in conformity with his character on these occasions. Admission for this purpose is clearly proscribed by Rule 404(a), W.R.E. United States v. Biswell, 700 F.2d 1310 (10th Cir.1983). The evidence was simply evidence of other burglaries by someone. Its predominant quality was to show the defendant's character as a burglar and his propensity for crime. United States v. Biswell, supra.\nThe majority concedes that the admission into evidence of the Bentley and McCue burglaries was error, but holds it to be harmless error. The trial judge carries with him during trial considerable credibility in the eyes of the jury. When he approves the admission of evidence of other crimes, he is saying the evidence is relevant and may be considered in determining defendant's guilt or innocence of the crime charged. The limiting instruction was not sufficient to overcome the prejudice. Here the jury heard evidence of two unsolved, unrelated burglaries — evidence held by the majority of this court to have been improperly admitted. I cannot, under any credible legal theory, find that to be harmless error. The result is appalling. In United States v. Parker, 604 F.2d 1327, 1329 (10th Cir.1979), the court held that:\n\n*252 \"Improper admission of evidence of a prior crime or conviction, even in the face of other evidence amply supporting the verdict, constitutes plain error impinging upon the fundamental fairness of the trial itself.\"\nIt is generally held that such error consistently requires reversal \"even in the face of other evidence ample to support the verdict.\" United States v. Gilliland, 586 F.2d 1384, 1391 (10th Cir.1978); United States v. Burkhart, supra. And where there was a reversal because of improperly admitted evidence, the court stated that it was ironic that, although the evidence did not add to the case of the prosecution, they were still unable to say the evidence was harmless. United States v. Mann, supra. Other cases have resulted in reversal even though the admitted evidence was found not necessary for the prosecution. United States v. Foskey, supra. See, United States v. Ring, supra; United States v. Fierson, 419 F.2d 1020 (7th Cir.1969).\nEvidence of three uncharged and unrelated burglaries was presented. These burglaries were not connected with appellant nor were they properly admitted under any of the exceptions of Rule 404(b). Appellant was foreclosed from having a fair trial on the merits; I can only describe the affirmance of this case as a travesty of justice and a denial of the safeguards which are designed to ensure a defendant a fair trial.\nNOTES\n[1] There was some evidence that the forcible entries could have been accomplished with the use of a screwdriver or similar device.\n[1] \"Prima facie\" is defined by Black's Law Dictionary (5th Ed. 1979) as:\n\n\"At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. * * *\"\n\n", "ocr": false, "opinion_id": 1389567 }, { "author_str": "Brown", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBROWN, Justice.\nAppellant Michael Lynn Bishop was charged by an information with two counts of burglary in violation of § 6-7-201(a)(i), W.S.1977. Count I alleged that appellant committed a burglary on December 22, 1980, and Count II alleged that appellant committed another burglary on February 25, 1982. Appellant pled not guilty to both counts.\nAppellant filed a motion to sever the two counts for the purposes of trial contending prejudice and because the two charges were remote in time. The trial court denied the motion to sever. Appellant also filed a motion in limine asking the court to preclude the state from introducing evidence of prior bad acts which included evidence of theft, receiving stolen property and burglary. This motion was also denied. Appellant was found guilty of both counts and sentenced to the penitentiary.\n*244The court further required that appellant pay restitution on both counts. Appellant claims that the trial court erred in admitting evidence of prior acts of misconduct, in denying the motion to sever, and in imposing restitution as a post-incarceration condition.\nWe will affirm in part and reverse in part.\nAppellant first argues that the trial court erred in admitting evidence of prior acts of misconduct and of unrelated, unsolved burglaries. On appeal deference is given to a trial court’s determination concerning the admissibility of evidence. As long as there is a legitimate basis for a court’s decision we cannot say that there was an abuse of discretion. Ortega v. State, Wyo., 669 P.2d 935 (1983). To resolve this issue we will examine the evidence admitted at trial and Rule 404(b), Wyoming Rules of Evidence.\nAppellant objects to the evidence and testimony admitted under Rule 404(b) because it tends to involve and incriminate him in other unrelated incidents. The evidence objected to relates to three burglaries in Laramie, Wyoming, with which appellant was not charged. The sequence of events involving the Laramie burglaries is: December 22, 1980 — Burgess residence burglarized (Count I); March 20, 1981— Boswell residence burglarized; September 30, 1981 — Bentley and McCue residences burglarized; and February 25, 1982— McNiff residence burglarized (Count II).\nThe Burgess home was broken into sometime between 1:00 p.m. and 6:30 p.m. on December 22, 1980. The back door to the house had been forcibly opened and left ajar. The house looked in order but the Burgesses discovered that silverware, jewel boxes, pistols, coins and wristwatches were missing. One of the pistols had a serial number which matched the serial number on a pistol recovered from the Federal Pawn Shop in Denver on May 25, 1982.\nThe individual who made the pawn was Michael L. Bishop.\nThe Boswell home was broken into between 8:00 a.m. and 3:30 p.m. on March 20, 1981. Entry was made through the ground-floor bedroom window at the back of the house. There were no fingerprints and nothing was disturbed in the house, but the sterling silver, some jewelry, and two sterling silver candlesticks were missing. At trial Mrs. Boswell identified the candlesticks as those taken from her home as well as she could without benefit of initials or a serial number. They were recovered on August 10, 1982, from a family in Cheyenne who had received them from Michael L. Bishop, a “personal friend.”\nThe Bentley burglary occurred between 2:00 p.m. and 3:00 p.m. on September 30, 1981. Entry was gained by forcing open the back door of the house. Very little was disturbed inside the house, but much of the Bentleys’ jewelry and silverware had been taken.\nThe time of day the McCue burglary occurred on September 30, 1981, is unknown. The burglar entered through a sliding glass window at the back of the house. Again, little was disturbed but the McCues discovered almost all of their jewelry and a camera were missing. The silver was hidden in the kitchen.\nThe evidence which tends to tie appellant to the Bentley and McCue burglaries is the manner in which the burglaries were conducted, and the fact motel clerks had receipts that stated Michael L. Bishop stayed in Laramie September 29, 1981, and checked out September 30, 1981.\nThe next event, November 1, 1981, which tended to incriminate appellant is an automobile accident after which certain items were found in appellant’s vehicle. The investigation of the accident revealed weapons, pistols, several items of jewelry, silverware, surgical rubber gloves, and a screwdriver.1\n*245The fifth and final burglary occurred on or about February 25, 1982. This burglary is Count II of the information. The burglar entered through the back of the house at an unknown time of day by forcing open a back door. No fingerprints were found; however, a footprint was found and a plaster cast was made of the footprint. Items taken included a music box, a western pistol, two wristwatches, and meerschaum pipes. (All the McNiffs’ silverware and jewelry were in their safe deposit box at the bank.)\nOn or about March 1, 1982, a music box similar in description to that taken from the McNiff residence was presented by Bishop to a New Mexico antique dealer. It was learned that Bishop had previously sold the antique dealer some sterling silver with a red stone in each handle, which was later determined to be stolen.\nIt was again learned that Bishop had registered at a Laramie motel on February 24, 1982, and checked out on February 25, 1982. This coincides with the McNiff burglary, and placed appellant in Laramie at the time of the burglary.\nBishop was being interviewed by the Laramie police on September 2, 1982, when Detective O’Malley noticed his boots. It was noted that he was wearing a pair of Dingo boots that had the same type of sole and were the same size as the plaster cast which the police had taken from the McNiff residence.\nFor evidence to be admissible at trial under Rule 404, W.R.E., it must also be relevant under Rule 402, W.R.E. Relevant evidence is defined in Rule 401, W.R.E., as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Once it is determined that the evidence is relevant, it must then be determined if the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or waste of time as defined in Rule 403, W.R.E. If there is evidence of other crimes, wrongs, or acts, then it may only be admissible under Rule 404(b), W.R.E., and cannot be used to show the character of the accused or that the accused has a propensity to commit crimes such as those with which he is charged. Rule 404, W.R.E.\n“Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Rule 404(b), W.R.E.\nWyoming follows the general rule that evidence of other crimes, wrongs, or acts is normally not admissible in the trial of a criminal case. Elliott v. State, Wyo., 600 P.2d 1044 (1979). The general rule is codified in the first sentence of Rule 404(b). In applying the second sentence of the rule, however, we have adopted a rather liberal attitude toward admitting evidence of other crimes, wrongs, or acts. See Ortega v. State, supra; Evans v. State, Wyo., 655 P.2d 1214 (1982); Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982); Hatheway v. State, Wyo., 623 P.2d 741 (1981); Grabill v. State, Wyo., 621 P.2d 802 (1980); Elliott v. State, supra. Such evidence is admissible if it is substantially relevant for other purposes, and its probative value outweighs its prejudicial effect. Grabill v. State, supra; and Elliott v. State, supra. See also 22 Wright and Graham, Federal Practice and Procedure: Evidence § 5239 (1978).\nFrom our detailed review of the record we believe that the Bentley and McCue burglaries do not tend to make appellant’s guilt in the charged burglaries more probable. Evidence of other crimes may be used to show that the modus oper-andi of the other crimes matches the crime charged. This helps prove the defendant’s guilt when the perpetrator of the other crimes is known, and therefore helps prove the defendant’s guilt when he is the perpe*246trator of the other crimes, and the other crimes are\n“* * * unique or unusual, and similar in nature to the crime charged, or (whether unusual or not) very close in detailed resemblance to the crime charged (distinctively similar), then such crimes may be proven and the trier allowed to infer that the accused is probably the culprit, since the crime charged bears the mark of his handiwork. * * *” 2 Louisell and Mueller, Rule 404, § 140, p. 142 (1978).\nBut, “p]n no event will evidence of other criminal acts be admissible unless a relationship between such acts and the defendant is established.” 1 Wharton’s Criminal Evidence, § 240, p. 532 (1972). The manner in which the Bentley and McCue burglaries were committed, while being similar, were not so unique as to warrant admission into evidence to prove the identity of the accused, the ultimate issue in this case. The fact that appellant was in Laramie at the time of these burglaries does not, without other evidence, prove that appellant committed the acts charged.\nAppellee claims that the evidence of the Bentley and McCue burglaries was not admitted to show the identity of the perpetrator of the crime but to show a plan, scheme or course of criminal conduct executed by appellant during the pertinent time period, December, 1980, through February, 1982. To allow evidence of other crimes to show a plan, scheme or course of criminal conduct, it must also be shown that there is a relationship between the crimes and the defendant. 1 Wharton’s Criminal Evidence, supra. However, the relationship need not be as strong for evidence to be admissible to show plan, scheme or course of criminal conduct as it needs to be to show modus operandi or identity. United States v. Myers, 550 F.2d 1036 (5th Cir.1977). There are several factors to be determined if evidence of other crimes is admissible:\n“(1) The proof of the other similar crimes must be plain, clear, and convincing.\n“(2) The other crimes must not be too remote in time from the charged offense. “(3) The evidence of the other crimes must be introduced for a purpose sanctioned by Rule 404(b) of the Federal Rules of Evidence.\n“(4) The element of the charged offense that the evidence of other crimes is introduced to prove must be a material issue in the case.\n“(5) There must be a substantial need for the probative value of the evidence of the other crimes.” United States v. Myers, supra, at 1044-1045. See also Louisell &amp; Mueller, Rule 404, § 140 (1978).\nWhile the proof of the Bentley and McCue burglaries was plain, clear and convincing, there was too little circumstantial evidence to connect appellant to these two uncharged burglaries. The defect in the proofs is the identity of the perpetrator. It is clear that as a predicate to the introduction of extrinsic acts the prosecution must establish that the defendant committed them. United States v. Chilcote, 724 F.2d 1498 (11th Cir.1984); and United States v. Guerrero, 650 F.2d 728 (5th Cir.1981). Proof of identity is not required beyond a reasonable doubt, but a prima facie case is necessary in order to make extrinsic acts admissible. United States v. Chilcote, supra; United States v. Edwards, 696 F.2d 1277, 1280 (11th Cir.1983), cert. denied — U.S.-, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983); United States v. Dothard, 666 F.2d 498 (11th Cir.1982).\nEven though the evidence of the Bentley and McCue burglaries was improperly admitted it was harmless error. The admission of such evidence does not mandate reversal of a conviction in all instances. As the court said in United States v. Corey, 566 F.2d 429, 432 (2nd Cir.1977):\n“* * * a nonconstitutional error, as in the case of erroneous admission of similar act evidence, is harmless if it is ‘highly probable’ that the error did not contribute to the verdict. [Citation.] Where there is overwhelming evidence of guilt, as there was here, erroneous evidentiary *247rulings on such collateral matters are often harmless. [Citations.]”\nOther federal courts have also held that the improper admission of similar acts evidence under Rule 404, Federal Rules of Evidence, can be treated as harmless error. United States v. Chilcote, supra; United States v. Cross, 638 F.2d 1375 (5th Cir.1981); United States v. Bettencourt, 614 F.2d 214 (9th Cir.1980); and United States v. Bosch, 584 F.2d 1113 (1st Cir.1978).\nFor an error to be regarded as harmful, there must be a reasonable possibility that in the absence of the error, the verdict might have been more favorable to the defendant. Hoskins v. State, Wyo., 552 P.2d 342 (1976), cert. denied 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). Because of the other evidence introduced against Bishop, we hold that there is not a reasonable possibility that the verdict would have been different. In its totality the other evidence introduced was overwhelming in the context of this case. This conclusion is further bolstered by the fact that the trial court gave an excellent instruction limiting the jury’s use of the other crimes, acts or wrongs as evidence. In our view this mitigates potential prejudice caused by the evidence.\nWe hold also that it was not an abuse of discretion to admit into evidence the Boswell burglary and evidence concerning the contents of appellant’s vehicle when it was involved in an accident investigated by the police.\nThe second issue we address is whether the trial court erred in denying appellant’s motion for severance of the two counts. Rule 12, Wyoming Rules of Criminal Procedure, states:\n“The court may order two (2) or more indictments or informations or both to be tried together if the offenses, and the defendants, if there is more than one (1), could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”\nThe burglary charges here were joined in the same information pursuant to Rule 11, W.R.Cr.P., and the motion to sever was brought pursuant to Rule 13, W.R.Cr.P. Hopkinson v. State, supra; and Tabor v. State, Wyo., 616 P.2d 1282 (1980). The evidence would have been the same had the charges been tried separately; therefore, there was no prejudice in trying them jointly.\nThe general rule in regard to joinder of offenses is that joinder is proper, absent compelling reasons for severance. Linn v. State, Wyo., 505 P.2d 1270 (1973), cert. denied 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 405, reh. denied 412 U.S. 944, 93 S.Ct. 2780, 37 L.Ed.2d 405.\n“* * * Joint trials serve the public interest by expediting the administration of justice, reducing docket congestion, conserving judicial time as well as that of jurors along with avoiding the recall of witnesses to duplicate their performances.” Jasch v. State, Wyo., 563 P.2d 1327, 1335 (1972).\nGranting or denying a motion for severance rests within the discretion of the trial court. Jasch v. State, supra; and Dobbins v. State, Wyo., 483 P.2d 255 (1971). We can see no reason to overrule the trial court’s determination in this regard.\nThe third and final issue we address is whether the trial court erred in imposing restitution as a post-incarceration condition. We hold that this was error because there is no statute authorizing restitution when the defendant is sentenced to incarceration.\nSection 7-13-308, W.S.1977, Cum.Supp. 1983, is the only statute which provides for a plan of restitution, and it applies only when the sentencing court orders a suspended imposition of sentence, a suspended sentence or probation. The statute does not allow for restitution as a post-incarceration condition.\nThe legislature is the body empowered to determine what crimes are punishable and prescribe punishment for those acts. The sentencing court has no power *248to order post-incarceration restitution absent some statutory authority. Barnes v. State, Wyo., 670 P.2d 302 (1983).\nAs we reasoned in Barnes, the sentence may have been treated differently if the trial court had been persuaded that it could not impose restitution when the defendant was sentenced to incarceration. Therefore, we affirm the conviction, but reverse the sentence because it is not a lawful sentence. We remand for resentencing of the appellant in accordance with the law stated in this opinion.\n\n. There was some evidence that the forcible entries could have been accomplished with the use of a screwdriver or similar device.\n\n", "ocr": false, "opinion_id": 9615600 }, { "author_str": "Cardine", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nCARDINE, Justice,\ndissenting, with whom ROSE, Justice, joins.\nI dissent. Appellant was tried for two separate burglaries charged in a single information, said burglaries being alleged to have occurred on December 22, 1980 and February 25, 1982 in Laramie, Wyoming. The court received in this trial evidence of three other unsolved burglaries, one which occurred March 20, 1981 and two which occurred September 30, 1981. The facts concerning the five burglaries are as follows.\nThe first burglary with which appellant was charged occurred at the Burgess residence the afternoon of December 22, 1980. The back door had been forcibly opened and left ajar. Other than the broken door, the house looked in order and did not seem to be disturbed. Silverware, jewelry, and two pistols were taken. The back yard was fenced. The second burglary with which appellant was charged occurred at the McNiff house during the night of February 25, 1982 or the morning of February 26, 1982. A window in the back door had been broken. A pistol, two watches, a set of meerschaum pipes, a music box and three beers were taken. The house was left in disarray. The back yard was fenced.\nThe three unresolved burglaries received in evidence occurred at the Boswell, Bentley and McCue residences in Laramie, Wyoming. In the burglary at the Boswell house, entry was through an unlocked bedroom window in the basement sometime during the day of March 20, 1981. The house was not damaged. Silverware, jewelry and a set of candlesticks were taken. The back yard was fenced. The Bentley and McCue burglaries occurred the afternoon of September 30, 1981. Entry at the Bentley residence was through the back door; at the McCue residence, entry was through a dining room window. The houses were not disturbed. Silverware and jewelry were taken from the Bentley residence. Jewelry and a camera were taken from the McCue residence. Both back yards were fenced. Appellant was not identified as the perpetrator of the three unresolved burglaries.\nWe have previously held that the reason for not allowing inquiry into charges and accusations in which convictions did not result is that:\n“ ‘It is a dangerous species of evidence, not only because it requires a defendant to meet and explain other acts than those charged against him and for which he is on trial, but also because it may lead the jury to violate the great principle, that a party is not to be convicted of one crime by proof that he is guilty of another.’ ” Gabrielson v. State, Wyo., 510 P.2d 534, 536 (1973) (quoting from Rosencrance v. State, 33 Wyo. 360, 239 P. 952, 953 (1925)).\nWe also stated that:\n“[I]t is settled law in this jurisdiction that mere charges, accusations, and arrests are consistent with innocence; and they should not be inquired into if the purpose of the prosecution is to discredit the witness in the eyes of the jury and convey to the jury knowledge that such witness was charged with a crime.” Id. at 536.\nWe have previously upheld the introduction of other crimes, wrongs, or acts in connection with Rule 404(b), W.R.E., when submitted for purposes other than that the accused has criminal characteristics. Evans v. State, Wyo., 655 P.2d 1214 (1982) (motive); Hopkinson v. State, Wyo., 632 P.2d 79 (1981) (motive); Hatheway v. State, Wyo., 623 P.2d 741 (1981) (knowledge); Vasquez v. State, Wyo., 623 P.2d 1205 *249(1981) (past pattern of conduct); Elliott v. State, Wyo., 600 P.2d 1044 (1979) (motive). We have allowed extrinsic evidence during rebuttal regarding identification and intent in Grabill v. State, Wyo., 621 P.2d 802 (1980), and when the defendant has opened the door by first offering testimony. Sanville v. State, Wyo., 593 P.2d 1340 (1979). In all of those cases the identity of the defendant as the perpetrator of the other acts received in evidence was not in dispute.\nIn the vast majority of cases which deal with the propriety of receipt of evidence of crimes other than the crime charged, the identity of the perpetrator of those other crimes is undisputed. In this case, however, the identity of the defendant as the perpetrator of the crimes was in dispute. Thus, the problems involved in determining admissibility were compounded: first, the evidence must make a prima facie case that the defendant was the perpetrator of the other burglaries; second, the evidence must be admissible under a Rule 404(b) exception; and third, if admission were proper, the probative value must not be outweighed by its prejudicial effect.\nAppellant was not charged with nor convicted of the three unsolved burglaries. With respect to the two burglaries of September 30, 1981, all that could be said was that appellant was in the town of Laramie on the date they occurred. So were approximately 20,000 other people in town on this date. The only testimony relating to appellant’s involvement in the Boswell burglary was testimony from a motel clerk which placed him in Laramie at the time of the incident and the fact that he had candlesticks similar to those stolen which he had given to a friend. This evidence does not rise to the level of the requisite prima facie1 case that appellant was in fact the perpetrator. State v. Jones, 27 Wyo. 46, 191 P. 1075 (1920). But even assuming, arguendo, that this testimony was sufficient to identify appellant, I would still find this evidence improperly admitted.\nTwo concerns are expressed by the first sentence of Rule 404(b) in that (1) the jury may convict a “bad man” who deserves to be punished, not because of the crime charged, but because of prior or subsequent misdeeds, and (2) that the jury might infer that because the accused has committed other crimes, he probably also committed this crime. United States v. Phillips, 599 F.2d 134 (6th Cir.1979).\nA defendant must be tried for what he did and not for who he is. United States v. Foskey, 636 F.2d 517 (D.C.Cir.1980).\n“Rules 403 and 404(b) are not obstacles to be cleared at all costs, even by cutting around corners whenever it is possible to do so. These rules were designed to ensure a defendant a fair and just trial based upon the evidence presented, not upon impermissible inferences of criminal predisposition or by confusion of the issues.” Id. at 525.\nFor other-acts evidence to be admissible, it must be relevant to an actual issue of the case tried. The probative value must not be outweighed by unfair prejudice. There is no presumption that other-crime evidence is relevant. United States v. DeVaughn, 601 F.2d 42 (2nd Cir.1979). See, United States v. Halper, 590 F.2d 422 (2nd Cir.1978). There must be a logical nexus between the crimes. United States v. Mann, 590 F.2d 361 (1st Cir.1978). The evidence must be offered for an issue that is in question. United States v. Ring, 513 F.2d 1001 (6th Cir.1975), 30 A.L.R.Fed. 860.\n“Too often we lose sight of the fact that the rule is primarily a rule of exclusion of evidence and not one of admission, and, although there are many exceptions, these do not detract from the general exclusionary approach which the rule demands.\n“Several factors have contributed to formulation of a cautious judicial attitude.\n*250“First, the accused is required to defend charges which are not described in the information or indictment. As a result he is required to defend past actions [for] which he may have in the past answered and with respect to which he may have even served his sentence. Thus, he is in effect tried as a recidivist though such a charge is not a part of the federal criminal code.\n“Secondly, although such evidence may have at least some relevance to the offense being tried, its predominant quality is to show up the defendant’s character as a car thief or a bad check artist, for example. Proof of defendant’s socio-pathic disposition is not a valid object. Showing that a man is generally bad has never been under our system allowable. The defendant has a right to be tried on the truth of the specific charge contained in the indictment.\n“Third, an obvious truth is that once prior convictions are introduced the trial is, for all practical purposes, completed and the guilty outcome follows as a mere formality. This is true regardless of the care and caution employed by the court in instructing the jury.\n“Thus, it is clear that the problem is not a simple evidentiary one, but rather goes to the fundamental fairness and justice of the trial itself.” (Footnote omitted.) United States v. Burkhart, 458 F.2d 201, 204-205 (10th Cir.1972).\nThe district court allowed the evidence on the theory that it related to identity. Rule 404(b) was incorrectly invoked on this basis. Admitting evidence for the purpose of identity requires an inference that if the defendant committed one crime, then in all probability, because of the unusual or distinctive nature of the crimes and the close similarity between them, he committed the second. These burglaries bore no special signature such as unusual mode of entry, time of occurrence, or special circumstances. They were so common as to be entirely unhelpful. Thus, the houses were entered when no one was at home, the entrances were not observed, the back yards were fenced, and easily “fenced” items were taken. These characteristics do not rise to the level of a “signature,” and the evidence has been held not admissible where\n“[t]he conduct was not sufficiently ‘peculiar, unique or bizarre,’ * * * nor was it so unusual or distinctive as to constitute * * * personal ‘signature’ on each crime * * (Citations omitted.) United States v. Ezzell, 644 F.2d 1304, 1306 (9th Cir.1981).\n“Where the alleged similarities between the crimes reveal little in common other than a sequence of time from the crime charged, the acts are not unusual and distinctive enough to come within the purview of the similarity element of the exception.” State v. Case, Mont., 621 P.2d 1066, 1071 (1980).\nThe State, recognizing the weakness of relying on “identity” as a proper ground for admitting the other-crimes evidence, contends that the evidence was properly admissible under the “common plan” exception. When extrinsic acts are admitted to show a common plan, scheme or design, the evidence is admissible only if it is\n“ * * * ‘so linked together in point of time and circumstances with the crime charged that one cannot be shown without proving the other.’ * * * Courts have admitted extrinsic act evidence to show a defendant’s design or plan to commit the specific crime charged, but never to show a design or plan to commit ‘crimes of the sort with which he is charged. ’ * * * Thus, proof of design or plan by showing the commission of similar acts requires more than\n“ ‘merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. * * * (Emphasis added; emphasis in original omitted.) United States v. Dothard, 666 F.2d 498, 502 (11th Cir.1982).\nThe common-plan theory must warrant an inference that if the defendant committed the other acts introduced, he committed the *251act charged. People v. Hunt, 72 Cal.App.3d 190, 139 Cal.Rptr. 675 (1977). A common scheme or plan embraces the commission of two or more crimes which are so related to each other that the proof of one crime tends to establish the proof of the other. United States v. Weaver, 565 F.2d 129 (8th Cir.1977). These burglaries were totally separate incidents occurring over a fifteen-month period and not interrelated to the crimes charged. Proof of one did not relate to proof of the others.\n“In permitting evidence of prior offenses to be received as a part of a common plan or scheme, we have come perilously close to putting the defendant’s character and record in issue notwithstanding his failure to take the witness stand, as in the instant case.” State v. Spreigl, 272 Minn. 488, 139 N.W.2d 167, 171 (1965).\nI would agree with United States v. Phillips, supra:\n“For the purpose of showing ‘intent and plan,’ the district judge admitted testimony connecting the defendant with several bank robberies other than the robbery for which he was on trial. Something more than repeated performance of the same class of crimes is required in evidencing a ‘design’ or ‘plan’ which, if proved, may raise the inference that the accused was the perpetrator of the crime in question.” 599 F.2d at 136.\nThe State attempts to bolster its argument by the theory that the other-crimes evidence was relevant to show a “complete story” and that the jury was entitled to know the complete story of appellant’s activities during the period of December 1980 through February 1982. The State relies on the case State v. Tharp, 27 Wash.App. 198, 616 P.2d 693 (1980) for this proposition. However, they misread that case. In State v. Tharp, evidence was admitted of other criminal activity because the criminal acts were inseparable from the whole criminal scheme. The evidence was allowed because it consisted of a string of connected offenses and without it the prosecution could only present a fragmentary version of the entire transaction. The other acts admitted took place in a twenty-four hour period. In the present case the five burglaries took place over a fifteen-month period. They were not part of one transaction; admission of one crime did not present a more complete version of another burglary. Reliance upon this theory for admission of this other-crimes evidence is totally misplaced. And, it is impossible to tell which theory the majority relied upon for upholding the admission of evidence concerning the Boswell burglary since their entire analysis of that evidence consists of:\n“We hold that it was not an abuse of discretion to admit into evidence the Boswell burglary * *\nI would find that the evidence in this case is in the nature of character evidence introduced to prove that appellant acted in conformity with his character on these occasions. Admission for this purpose is clearly proscribed by Rule 404(a), W.R.E. United States v. Biswell, 700 F.2d 1310 (10th Cir.1983). The evidence was simply evidence of other burglaries by someone. Its predominant quality was to show the defendant’s character as a burglar and his propensity for crime. United States v. Biswell, supra.\nThe majority concedes that the admission into evidence of the Bentley and McCue burglaries was error, but holds it to be harmless error. The trial judge carries with him during trial considerable credibility in the eyes of the jury. When he approves the admission of evidence of other crimes, he is saying the evidence is relevant and may be considered in determining defendant’s guilt or innocence of the crime charged. The limiting instruction was not sufficient to overcome the prejudice. Here the jury heard evidence of two unsolved, unrelated burglaries — evidence held by the majority of this court to have been improperly admitted. I cannot, under any credible legal theory, find that to be harmless error. The result is appalling. In United States v. Parker, 604 F.2d 1327, 1329 (10th Cir.1979), the court held that:\n*252“Improper admission of evidence of a prior crime or conviction, even in the face of other evidence amply supporting the verdict, constitutes plain error impinging upon the fundamental fairness of the trial itself.”\nIt is generally held that such error consistently requires reversal “even in the face of other evidence ample to support the verdict.” United States v. Gilliland, 586 F.2d 1384, 1391 (10th Cir.1978); United States v. Burkhart, supra. And where there was a reversal because of improperly admitted evidence, the court stated that it was ironic that, although the evidence did not add to the case of the prosecution, they were still unable to say the evidence was harmless. United States v. Mann, supra. Other cases have resulted in reversal even though the admitted evidence was found not necessary for the prosecution. United States v. Foskey, supra. See, United States v. Ring, supra; United States v. Fierson, 419 F.2d 1020 (7th Cir.1969).\nEvidence of three uncharged and unrelated burglaries was presented. These burglaries were not connected with appellant nor were they properly admitted under any of the exceptions of Rule 404(b). Appellant was foreclosed from having a fair trial on the merits; I can only describe the affirmance of this case as a travesty of justice and a denial of the safeguards which are designed to ensure a defendant a fair trial.\n\n. \"Prima facie” is defined by Black’s Law Dictionary (5th Ed.1979) as:\n\"At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure; presumably; a fact presumed to be true unless disproved by some evidence to the contrary. * * * ”\n\n", "ocr": false, "opinion_id": 9615601 } ]
Wyoming Supreme Court
Wyoming Supreme Court
S
Wyoming, WY
26,773
null
2002-03-07
false
united-states-v-castro
Castro
United States v. Castro
null
null
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\01/01-20516.0.wpd.pdf", "author_id": null, "opinion_text": " IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n\n No. 01-20516\n Summary Calendar\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\nversus\n\nJORGE ELIECER CASTRO,\n\n Defendant-Appellant.\n\n --------------------\n Appeal from the United States District Court\n for the Southern District of Texas\n USDC No. H-00-CR-30-1\n --------------------\n March 6, 2002\n\nBefore DeMOSS, PARKER, and DENNIS, Circuit Judges.\n\nPER CURIAM:*\n\n Jorge Eliecer Castro appeals the sentence imposed following\n\nhis guilty-plea conviction for conspiracy to possess with intent\n\nto distribute cocaine and cocaine base, in violation of 21 U.S.C.\n\n§§ 841(a) and 846. Castro argues that the district court erred\n\nby enhancing his offense level pursuant to U.S.S.G. § 3B1.1(a)\n\nfor his role as an organizer or leader. He additionally asserts\n\nthat the district court erred in holding him accountable for 50\n\nkilograms of cocaine based on information from a Government\n\ninformant.\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined\nthat this opinion should not be published and is not precedent\nexcept under the limited circumstances set forth in 5TH CIR.\nR. 47.5.4.\n\f No. 01-20516\n -2-\n\n The district court’s determination that a defendant is an\n\norganizer or leader under § 3B1.1 is a factual finding which this\n\ncourt will disturb only if it is clearly erroneous. United\n\nStates v. Ayala, 47 F.3d 688, 689-90 (5th Cir. 1995). Generally,\n\na presentence report (PSR) bears sufficient indicia of\n\nreliability to be considered as evidence by the sentencing judge\n\nwhen making factual determinations. United States v. Alfaro, 919\n\nF.2d 962, 966 (5th Cir. 1990). A close examination of the PSR\n\nshows that it contained sufficient factual findings to support\n\nthe leadership adjustment. See U.S.S.G. § 3B1.1(a), comment.\n\n(n.4); Ayala, 47 F.3d at 689-90. The district court’s finding\n\nthat Castro was a leader/organizer is not clearly erroneous.\n\n We also review the district court’s determination regarding\n\nthe quantity of drugs for clear error. United States v. Alford,\n\n142 F.3d 825, 831 (5th Cir. 1998). The sworn testimony of\n\nunindicted co-conspirator Jimmy Escalante provided sufficient\n\ncorroboration for the statements Escalante made to investigative\n\nagents regarding the amount of drugs he was hired by Castro to\n\ndistribute. See United States v. Morris, 46 F.3d 410, 425 (5th\n\nCir. 1995). Furthermore, Castro cannot now complain, for the\n\nfirst time, that he was denied his rights of confrontation and\n\ncross-examination and fails to demonstrate plain error. See id.\n\nat 423; United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.\n\n1994)(en banc), abrogated in part, Johnson v. United States, 520\n\nU.S. 461 (1997). The district court’s finding that Castro was\n\naccountable for the 50 kilograms of cocaine was not clearly\n\nerroneous.\n\n AFFIRMED.\n\f", "ocr": false, "opinion_id": 26773 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
2,036,983
Michael F. Cavanagh
2000-12-01
false
michigan-coalition-of-state-emp-unions-v-michigan-civil-service-comn
null
MICHIGAN COALITION OF STATE EMP. UNIONS v. Michigan Civil Service Com'n
null
null
null
null
null
null
null
null
null
null
null
null
1
Published
null
null
[ "619 N.W.2d 535" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4771, "opinion_text": "\n619 N.W.2d 535 (2000)\nMICHIGAN COALITION OF STATE EMPLOYEE UNIONS, Plaintiff-Appellee, and\nInternational Union, United Automobile, Aerospace &amp; Agricultural Implement Workers of America (UAW) and Lynda Taylor-Lewis, Intervening Plaintiffs-Appellees,\nv.\nMICHIGAN CIVIL SERVICE COMMISSION, Defendant-Appellant.\nNo. 115579, COA No. 212236.\nSupreme Court of Michigan.\nDecember 1, 2000.\nOn order of the Court, the application for leave to appeal from the June 8, 1999, decision of the Court of Appeals is considered, and it is GRANTED, limited to the issue whether a showing of irreparable harm is required to justify a preliminary injunction against an alleged violation of Const. 1963, art. 11, § 5.\nMICHAEL F. CAVANAGH, J., states as follows:\nI dissent and would not require the parties to brief and argue the rhetorical question framed by the Court.\nNothing in the language of Const. 1963, art. 11, § 5 suggests that it eliminates the need to establish the traditional requirements for preliminary injunctive relief. Article 11, § 5 does grant standing to any citizen to bring suit to compel compliance with its provisions. However, the reference in art. 11, § 5 to \"injunctive or mandamus proceedings\" suggests, if anything, that it incorporates traditional procedures and rules applicable to those kinds of actions, including the requirement of a showing of irreparable harm in order to justify a preliminary injunction.\nI would deny leave to appeal.\n", "ocr": false, "opinion_id": 2036983 } ]
Michigan Supreme Court
Michigan Supreme Court
S
Michigan, MI
2,707,178
Klatt
2013-10-22
false
state-v-chandler
null
State v. Chandler
null
null
null
null
null
null
null
null
null
null
null
null
18
Published
null
null
[ "2013 Ohio 4671" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 4, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/10/2013/2013-ohio-4671.pdf", "author_id": 8110, "opinion_text": "[Cite as State v. Chandler, 2013-Ohio-4671.]\n\n IN THE COURT OF APPEALS OF OHIO\n\n TENTH APPELLATE DISTRICT\n\n\nState of Ohio, :\n\n Plaintiff-Appellee, :\n No. 13AP-452\nv. : (C.P.C. No. 01CR-4593)\n\nAntwaun L. Chandler, : (ACCELERATED CALENDAR)\n\n Defendant-Appellant. :\n\n\n\n\n D E C I S I O N\n\n Rendered on October 22, 2013\n\n\n Ron O'Brien, Prosecuting Attorney, and Kimberly M. Bond,\n for appellee.\n\n Antwaun L. Chandler, pro se.\n\n APPEAL from the Franklin County Court of Common Pleas\n\nKLATT, P.J.\n {¶ 1} Defendant-appellant, Antwaun L. Chandler, appeals from a judgment of the\nFranklin County Court of Common Pleas denying his postsentence motion to withdraw\nguilty plea without a hearing. Because the trial court did not abuse its discretion, we\naffirm that judgment.\nI. Factual and Procedural Background\n {¶ 2} In 2001, after having been bound over to the trial court from the juvenile\ncourt, a grand jury indicted appellant with one count of aggravated murder with a death\npenalty and firearm specification and one count of aggravated robbery with a firearm\nspecification. Appellant was 17 years old at the time of the offenses. Appellant originally\nentered a not guilty plea to the charges but subsequently withdrew his not guilty plea and\n\fNo. 13AP-452 2\n\nentered a guilty plea to one count of murder with a firearm specification. The trial court\naccepted appellant's guilty plea, found him guilty, and sentenced him to a prison term of\n15 years to life with an additional three years for the firearm specification. Appellant did\nnot timely appeal his conviction or sentence.\n {¶ 3} Five months after his plea, appellant filed a petition for postconviction relief\nin which he raised a claim of ineffective assistance of counsel. Appellant claimed that he\nentered his guilty plea based on trial counsel's lie to him that an accomplice had been\narrested, had implicated him in the offenses, and agreed to testify against him. The trial\ncourt eventually held a hearing in 2007 and denied appellant's petition. This court\naffirmed that decision. State v. Chandler, 10th Dist. No. 09AP-394, 2009-Ohio-5858.\n {¶ 4} On April 23, 2013, almost 12 years after his guilty plea, appellant filed a\npostsentence motion to withdraw his guilty plea. In his motion, appellant alleged that he\nwas actually innocent of the offenses. In support of his claim of innocence, appellant\npresented affidavits of two co-defendants, who both swore that appellant did not\nparticipate in the robbery or murder. Another affiant swore that he lied about appellant\nallegedly confessing to the murder. The trial court denied appellant's motion without a\nhearing, concluding that appellant's previous admissions to being involved in the crimes\ncontradicted the exculpatory statements of his accomplices and his own current claim of\ninnocence.\nII. The Appeal\n {¶ 5} Appellant appeals and assigns the following error:\n The Trial Court Abused Its Discretion When The Court\n Denied Chandler's Motion To Withdraw Guilty Plea Without\n An Evidentiary Hearing.\n\n A. Standard of Review\n {¶ 6} Crim.R. 32.1 permits a motion to withdraw a guilty plea \"only before\nsentence is imposed; but to correct manifest injustice the court after sentence may set\naside the judgment of conviction and permit the defendant to withdraw his or her plea.\"\nManifest injustice relates to some fundamental flaw in the proceedings which results in a\nmiscarriage of justice or is inconsistent with the demands of due process. State v.\nWilliams, 10th Dist. No. 03AP-1214, 2004-Ohio-6123, ¶ 5. Manifest injustice \" 'is an\nextremely high standard, which permits a defendant to withdraw his guilty plea only in\n\fNo. 13AP-452 3\n\nextraordinary cases.' \" State v. Tabor, 10th Dist. No. 08AP-1066, 2009-Ohio-2657, ¶ 6,\nquoting State v. Price, 4th Dist. No. 07CA47, 2008-Ohio-3583, ¶ 11. A defendant seeking\nto withdraw a guilty plea following imposition of sentence bears the burden of\nestablishing manifest injustice with specific facts either contained in the record or\nsupplied through affidavits submitted with the motion. State v. Garcia, 10th Dist. No.\n08AP-224, 2008-Ohio-6421, ¶ 11, citing State v. Gegia, 157 Ohio App. 3d 112, 2004-Ohio-\n2124 (9th Dist.).\n {¶ 7} A trial court is not automatically required to hold a hearing on a post-\nsentence motion to withdraw a guilty plea. State v. Spivakov, 10th Dist. No. 13AP-32,\n2013-Ohio-3343, ¶ 11, citing State v. Barrett, 10th Dist. No. 11AP-375, 2011-Ohio-4986,\n¶ 9. A hearing must only be held if the facts alleged by the defendant, accepted as true,\nwould require that the defendant be allowed to withdraw the plea. Id.\n {¶ 8} The decision whether to hold a hearing on a postsentence motion to\nwithdraw guilty plea and whether to grant or deny the motion is left to the discretion of\nthe trial court. State v. Smith, 49 Ohio St. 2d 261 (1977), paragraph two of the syllabus;\nSpivakoc at ¶ 10. Therefore, this court's review of the trial court's denial of a post-\nsentence motion to withdraw a guilty plea or the decision not to hold a hearing is limited\nto a determination of whether the trial court abused its discretion. State v. Conteh, 10th\nDist. No. 09AP-490, 2009-Ohio-6780, ¶ 16. Absent an abuse of discretion on the part of\nthe trial court, its decisions concerning a post-sentence motion to withdraw guilty plea\nmust be affirmed. State v. Xie, 62 Ohio St. 3d 521, 527 (1992). Although an abuse of\ndiscretion is typically defined as an unreasonable, arbitrary, or unconscionable decision,\nState v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court\nhas the authority, within its discretion, to commit an error of law. State v. Beechler, 2d\nDist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.\n B. The Trial Court did not Abuse its Discretion by Denying Appellant's\nMotion to Withdraw Without a Hearing\n\n {¶ 9} Appellant based his motion to withdraw on his claim of actual innocence.\nThat claim is not properly before this court on appeal, as \" 'a counseled plea of guilty to a\ncharge removes the issue of factual guilt from the case.' \" State v. McMichael, 10th Dist.\nNo. 11AP-1042, 2012-Ohio-3166, ¶ 36, quoting State v. Beckwith, 8th Dist. No. 91399,\n\fNo. 13AP-452 4\n\n2009-Ohio-1244, fn. 4; State v. Stumph, 32 Ohio St. 3d 95, 104-05 (1987). Appellant has\nnot challenged the trial court's acceptance of his guilty plea, so we have no cause to re-\nexamine issues those pleas properly resolved. McMichael, citing State v. Kimpel, 6th\nDist. No. WM-07-008, 2007-Ohio-6129, ¶ 20; State v. Lababidi, 8th Dist. No. 96755,\n2012-Ohio-267, ¶ 17 (affirming denial of motion to withdraw and noting that defendant\ncould not claim innocence because he entered a guilty plea).\n {¶ 10} We also note that appellant did not dispute the prosecutor's recitation of\nfacts at his plea hearing. At that hearing, the prosecutor stated that appellant pulled out a\nhandgun and shot the victim three times during a robbery. When the trial court asked\nappellant if he was guilty of the charges pending against him, appellant responded\naffirmatively. And, as this court noted in our previous decision affirming the denial of his\npetition for postconviction relief, appellant admitted to being involved in the shooting.\nChandler at ¶ 11. For these additional reasons, the trial court did not abuse its discretion\nby concluding that appellant failed to demonstrate manifest injustice warranting the\nwithdrawal of his guilty plea.\nIII. Conclusion\n {¶ 11} The trial court did not abuse its discretion by denying appellant's motion to\nwithdraw without a hearing. Accordingly, we overrule appellant's assignment of error and\naffirm the judgment of the Franklin County Court of Common Pleas.\n Judgment affirmed.\n\n BROWN and SADLER, JJ., concur.\n\f", "ocr": false, "opinion_id": 2707178 } ]
Ohio Court of Appeals
Ohio Court of Appeals
SA
Ohio, OH
2,652,217
null
2014-02-04
false
state-of-washington-v-raymond-u-arndt-jr
null
State Of Washington, V Raymond U. Arndt, Jr.
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 16, "download_url": "http://www.courts.wa.gov/opinions/pdf/D2 43717-1-II Published Opinion.pdf", "author_id": null, "opinion_text": " f` fLED\n 1 T iJF APPEA1\n DMS1091 ii\n\n 2014 FEB - 4 ACS 9* 16\n\n STATE OF WASHINGTON\n\n ay - 9 (/\n f3 PT- E\n\n\n\n\n IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON\n\n DIVISION II\n\nSTATE OF WASHINGTON,\n\n\n Respondent, No. 43717 -1 - II\n\n\n V.\n\n\n\nRAYMOND UWE ARNDT, JR., PUBLISHED OPINION\n\n\n Appellant.\n\n\n\n\n MAXA, J. — Raymond Arndt, Jr. appeals his sentence following his conviction for\n\nvehicular assault. He asserts that the sentencing court sentenced him based on an inflated\n\noffender score because the court erroneously included points for five prior Oregon convictions.\nWe hold that the State met its burden to prove that the Oregon conviction for unauthorized use of\n\na vehicle was comparable to a Washington offense. However, we hold that the State failed to\n\nprove that Arndt' s Oregon convictions for attempted second degree assault, driving while under\n\nthe influence of intoxicants ( DUII), and third degree rape were legally or factually comparable to\n\nWashington offenses. Therefore, the sentencing court should not have included the Oregon\n\nattempted second degree assault, DUII, and third degree rape convictions in Arndt' s offender\n\nscore. Accordingly, we remand for resentencing.\n\fNo. 43717 -1 - II\n\n\n\n FACTS\n\n\n Arndt pleaded guilty to one count of vehicular assault, but he disputed the State' s\n\ncomputation of his offender score at sentencing. Specifically, he argued that five prior Oregon\n\nconvictions —attempted second degree assault, unauthorized use of a vehicle, DUII (two), and\n\n\n\nthird degree rape — should not be included in his offender score because the State failed to prove\n\n\ncomparability. The sentencing court performed a legal and factual comparison on the record and\n\nfound that the Oregon convictions at issue were comparable to Washington offenses, which\n\n\nresulted in an offender score of 8. The sentencing court sentenced Arndt to a mid -\n range sentence\n\nof 62 months. Arndt appeals his sentence.\n\n\n ANALYSIS\n\n\nA. USE OF PRIOR CONVICTIONS IN OFFENDER SCORE\n\n\n Under the Sentencing Reform Act of 1981 ( SRA), chapter 9. 94A RCW, the sentencing\n\ncourt uses the defendant' s prior convictions to determine an offender score, which along with the\n\n seriousness level' \" of the current offense establishes his or her presumptive standard\n\n\nsentencing range. State v. Ford, 137 Wash. 2d 472, 479, 973 P.2d 452 ( 1999) ( quoting State v.\n\nWiley, 124 Wash. 2d 679, 682, 880 P.2d 983 ( 1994)). We review a sentencing court' s calculation\n\nof an offender score de novo. State v. Bergstrom, 162 Wash. 2d 87, 92, 169 P.3d 816 ( 2007).\n\n\n The State must prove the existence of prior felony convictions) used to calculate an\n\noffender score by a preponderance of the evidence. Ford, 137 Wash. 2d at 479 -80; see also RCW\n\n\n\n Generally, only felonies are included in the offender score. State v. Larkins, 147 Wash. App.\n858, 862 -63 & n. 7, 199 P.3d 441 ( 2008). But where the current conviction is for a felony traffic\n\noffense, a sentencing court may include serious misdemeanor traffic offenses, such as driving\nunder the influence in the offender score. Larkins, 147 Wash. App. at 862 -63 & n. 7; see RCW\n\n9. 94A.525 (11).\n\n\n F)\n\fNo. 43717 -1 - II\n\n\n9. 94A. 500( 1). If the convictions are from another jurisdiction, the State also must prove that the\n\n\nconviction would be a felony under Washington law. Ford, 137 Wash. 2d at 480. \" The existence\n\n 2\nof a prior conviction is a question of fact.\" In re Pers. Restraint ofAdolph, 170 Wash. 2d 556,\n\n566, 243 P.3d 540 ( 2010).\n\n\n Where the defendant' s offenses resulted in out - state convictions, RCW 9. 94A.525( 3)\n of -\n\n\nprovides that such offenses \" shall be classified according to the comparable offense definitions\n\nand sentences provided by Washington law.\" This statute requires the sentencing court to make\n\na factual determination of whether the out - - tate conviction is comparable to a Washington\n of s\n\nconviction. State v. Morley, 134 Wash. 2d 588, 601, 952 P.2d 167 ( 1998) ( citing former 9. 94A.360\n\n 1996), recodified as RCW 9. 94A.525 by LAWS of 2001, ch. 10, § 6). Only if the convictions\n\nare comparable can the out -of state conviction be included in the offender score. State v.\n -\n\nThiefault, 160 Wash. 2d 409, 415, 158 P.3d 580 ( 2007).\n\n\n Our Supreme Court has adopted a two -\n part analysis for determining whether an out-of-\n\nstate conviction is comparable to a Washington conviction. Thiefault, 160 Wash. 2d at 414 -15.\n\nFirst, the sentencing court determines whether the offenses are legally comparable —whether the\n\n\n\nelements of the out -of - tate offense are substantially similar to the elements of the Washington\n s\n\noffense. Thiefault, 160 Wash. 2d at 415. If the elements of the out - state offense are broader\n of -\n\n\n\n\n2\n Arndt does not challenge the existence and felony classification of his Oregon convictions.\nAnd the State presented certified copies of the judgment of each of those convictions.\nAccordingly, the State proved their existence by a preponderance of the evidence.\n\fNo. 43717 -1 - II\n\n\n 3\nthan the elements of the Washington offense, they are not legally comparable. In re Pers.\n\n\nRestraint ofLavery, 154 Wash. 2d 249, 258, 111 P.3d 837 ( 2005).\n\n Second, even if the offenses are not legally comparable, the sentencing court can still\n\ninclude the out - - tate conviction in the offender score if the offense is factually comparable.\n of s\n\nThiefault, 160 Wash. 2d at 415; Lavery, 154 Wash. 2d at 255. Determining factual comparability\n\ninvolves analyzing whether the defendant' s conduct underlying the out - state conviction would\n of -\n\nhave violated the comparable Washington statute. Thiefault, 160 Wash. 2d at 415. The sentencing\n\ncourt may \" look at the defendant' s conduct, as evidenced by the indictment or information, to\n\ndetermine if the conduct itself would have violated a comparable Washington statute.\" Lavery,\n\n154 Wash. 2d at 255. In making this factual comparison, the sentencing court may rely on facts in\n\nthe out -of - tate record only if they are admitted, stipulated to, or proved beyond a reasonable\n s\n\ndoubt. Thiefault, 160 Wash. 2d at 415. But the elements of the charged crime must remain the\n\n\ncornerstone of this inquiry because \" `[ f]acts or allegations contained in the record, if not directly\n\nrelated to the elements of the charged crime, may not have been sufficiently proven in the\n\ntrial.'\" Lavery, 154 Wash. 2d at 255 ( quoting Morley, 134 Wash. 2d at 606).\n\n In the factual comparability analysis, the sentencing court is not allowed to consider\n\nevidence not presented in the out - - tate proceeding. The facts must be admitted or proved\n of s\n\nbeyond a reasonable doubt in the of state conviction.\n out - - Lavery, 154 Wash. 2d at 258. For\n\n\nexample, in State v. Ortega, the issue was whether a prior Texas conviction for second degree\n\n\nindecency with a child, which required the child victim to be under 17 years old, was comparable\n\nto a Washington offense that required the child victim be under 12 years old. 120 Wash. App. 165,\n\n\n3 We use the elements of the Washington offenses in effect at the time the out - - tate crime was\n of s\ncommitted in our analysis. In re Pers. Restraint ofLavery, 154 Wash. 2d 249, 255, 111 P.3d 837\n 2005).\n 4\n\fNo. 43717- 1- 11\n\n\n\n168 -69, 173 - 74, 84 P.3d 935 ( 2004), vacated on remand, 131 Wash. App. 591, 128 P.3d 146\n\n 2006). At sentencing, the State offered testimony of a Texas official and the Texas indictment,\n\njudgment, and police reports to establish that the Texas victim was 10 years old. Ortega, 120\n\n\nWash. App. at 168, 173 -74. The defendant submitted letters from the Texas victim and her mother\n\nurging the court to provide the defendant counseling; additionally the letters stated that the Texas\n\nvictim was 10 years old when the offense occurred. Ortega, 120 Wash. App. at 173 -74. Applying\n\nApprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 ( 2000), the\n\n\nsentencing court refused to consider the evidence of the victim' s age because the victim' s age\n\nwas not proven at the Texas trial. Ortega, 120 Wash. App. at 169, 174. Division Three of this\n\ncourt affirmed and held that \" Apprendi prohibits a sentencing court' s consideration of the\n\nunderlying facts of a prior conviction if those facts were not found by the trier of fact beyond a\n\nreasonable doubt.\" Ortega, 120 Wash. App. at 174.\n\n If an out - - tate conviction involves an offense that is neither legally or factually\n of s\n\ncomparable to a Washington offense, the sentencing court may not include the conviction in the\n\ndefendant' s offender score. Thiefault, 160 Wash. 2d at 415.\n\n\nB. COMPARABILITY OF OREGON CONVICTIONS\n\n\n Arndt argues that the sentencing court erred in classifying five Oregon convictions as\n\ncomparable to Washington offenses and including them in his offender score calculation. We\n\nhold that the Oregon unauthorized use of a vehicle conviction is comparable to a Washington\n\n\nconviction, but that the Oregon attempted second degree assault, DUII, and third degree rape\n\nconvictions are not.\n\n\n\n\n R\n\fNo. 43717 -1 - II\n\n\n\n Unauthorized Use of Vehicle Conviction\n\n\n Arndt was convicted of unauthorized use of a vehicle in Oregon based on an incident that\n\n\noccurred in 1998. At sentencing, the State conceded that the Oregon and Washington offenses\n\nwere not legally comparable. See State v. Jackson, 129 Wash. App. 95, 107 -08, 117 P.3d 1182\n\n 2005) ( holding that Oregon'.s former unauthorized use of a vehicle offense was not legally\n\ncomparable to Washington' s taking a motor vehicle without permission offense because the\n\nformer Oregon statute prohibited a broader range of activity than the former Washington\n 4\nstatute). But the sentencing court performed a factual comparability analysis and determined\n\nthat Arndt' s conduct would have violated the former Washington statute. In his statement of\n\nadditional grounds for review, Arndt argues that the State did not prove that his conduct met the\n\n\nintent element required by the former Washington statute. We disagree.\n\n The former Washington statute for taking a motor vehicle without permission requires ( 1)\n\nintentionally taking or driving away a motor vehicle without permission of the owner or person\n\nentitled to the possession thereof or ( 2) voluntarily riding in a motor vehicle with knowledge that\n\nit was unlawfully taken. Former RCW 9A.56. 070 ( 1975); see Jackson, 129 Wash. App. at 108. In\n\nhis guilty plea, Arndt admitted that he drove a vehicle he had stolen. A sentencing court\n\nproperly can consider facts conceded by the defendant in a guilty plea as an admitted fact.\n\nThiefault, 160 Wash. 2d at 415; see State v. Tewee, 176 Wash. App. 964, 970, 309 P.3d 791 ( 2013)\n\n considering admission in guilty plea), petition for review filed, No. 89446 -9 ( Wash. Oct. 23,\n\n2013); State v. Bunting, 115 Wn. App. 135, 143, 61 P.3d 375 ( 2003) ( noting that element of\n\nWashington offense was not conceded by the defendant' s guilty plea in out -of state case).\n -\n\n\n4 The analysis in Jackson applies here because the court compared the Washington and Oregon\nstatutes in effect in 1998. 129 Wn. App. at 107 -08; see former RCW 9A.56. 070 ( 1975); former\nORS 164. 135 ( 1971).\n 31\n\fNo. 43717 -1 - II\n\n\n\nArndt' s admission demonstrates that he committed an intentional taking of the vehicle without\n\npermission. Therefore, his conduct would have met the requirements of the former Washington\n\n\nstatute. Because Arndt' s Oregon conviction for unauthorized use of a vehicle is factually\n\ncomparable to Washington' s former taking a motor vehicle without permission statute, the\n\nsentencing court properly included it as a point in Arndt' s offender score.\n\n 2. Attempted Second Degree Assault Conviction\n\n\n Arndt was convicted of attempted second degree assault in Oregon for an incident that\n\n\noccurred in 2007. Under the SRA, prior convictions for felony anticipatory offenses, including\n\nattempts, are scored the same as if they were convictions for completed offenses. RCW\n\n9. 94A. 525( 4). Arndt argues that the Oregon and Washington attempted second degree assault\n\n\noffenses are not legally comparable because the Oregon offense is broader than the Washington\n\noffense. We agree.\n\n\n a. Definition of Attempt\n\n\n Arndt asserts that \" attempt\" is defined more narrowly in Washington than in Oregon.\n\nUnder ORS 161. 405( 1), \" A person is guilty of an attempt to commit a crime when the person\n\nintentionally engages in conduct which constitutes a substantial step toward commission of the\n\ncrime.\" And under RCW 9A.28. 020( 1), \" A person is guilty of an attempt to commit a crime, if\n\nwith intent to commit a specific crime, he or she does any act which is a substantial step toward\n\nthe commission of that crime.\" ( Emphasis added.) The difference is that Washington requires\n\n\nspecific intent to commit a crime rather than general intent to engage in conduct constituting a\n\nsubstantial step towards commission of a crime.\n\n The sentencing court acknowledged that the Oregon and Washington elements of attempt\n\nare not legally comparable. However, under the second part of the comparability analysis it\n\n 7\n\fNo. 43717 -1 - II\n\n\n\ndetermined that the offenses were factually comparable. In his guilty plea, Arndt admitted that\n\nhe \" intentionally attempted to cause serious physical injury\" to the victim. Clerk' s Papers at 84.\n\nAs stated above, a sentencing court properly can consider this plea as an admitted fact.\n\nThiefault, 160 Wash. 2d at 415; See Tewee, 176 Wash. App. at 970; Bunting, 115 Wash. App. at 143.\n\nThe sentencing court correctly held that this admission showed that Arndt specifically intended\n\nto commit the crime of assault. Therefore, his conduct would have met the requirements of the\n\nWashington attempt statute.\n\n\n b. Assault Statutes\n\n\n Arndt argues that the Oregon second degree assault statute is broader than the\n\n\nWashington second degree assault statute. In Oregon, a person commits second degree assault if\n\nthe person \"[ i] ntentionally or knowingly causes serious physical injury to another.\" ORS\n\n\n163. 175( 1)( b) ( emphasis added). \" ` Serious physical injury' means physical injury which creates\n\na substantial risk of death or which causes serious and protracted disfigurement, protracted\n\n\nimpairment of health or protracted loss or impairment of the function of any bodily organ.\" ORS\n\n\n161. 015( 8). In Washington a person commits second degree assault if the-person, under\n\n\ncircumstances not amounting to first degree assault, \"[ i]ntentionally assaults another and thereby\n\nrecklessly inflicts substantial bodily harm.\" RCW 9A.36. 021( 1)( a) ( emphasis added).\n\n\n\n\n Substantial bodily harm' means bodily injury which involves a temporary but substantial\n\ndisfigurement, or which causes a temporary but substantial loss or impairment of the function of\n\nany bodily part or organ, or which causes a fracture of any bodily part.\" RCW 9A.04. 110( 4)( b).\n\n\n Arndt argues that the term \" serious physical injury\" used in the Oregon statute is broader\n\nthan the Washington requirement of \"substantial bodily harm\" because it permits conviction for\n\nimpairment of a person' s \" health\" but Washington' s does not. He argues that \" impairment of\n\n 8\n\fNo. 43717 -1 - II\n\n\n\nhealth\" ( Oregon statute) is broader than \" impairment of the function of any bodily part or organ\"\n\n Washington statute) because \" health\" could include mental or emotional health, or a general\n\n\nfeeling of malaise that cannot be traced to a particular bodily part or organ. We agree.\n\n The Oregon and Washington statutes are similar in that they both require some physical\n\ninjury. Under the Oregon statute, \" serious physical injury\" exists only ifphysical injury causes\n\nthe \" impairment of health.\" ORS 161. 015( 8). However, a victim could suffer a \" protracted\n\n\nimpairment of health\" ( Oregon statute) that does not involve the \" impairment of the function of\n\n\nany bodily part or organ\" ( Washington statute). ORS 161. 015( 8); RCW 9A.04. 110( 4)( b). For\n\n\ninstance, a victim could suffer a laceration and scar that resulted in long -\n term psychological\n\ninjury that would qualify as impairment of mental health, but would not constitute impairment of\n\nthe function of a bodily part or organ. As a result, a showing of \"serious bodily injury\" under the\n\nOregon statute would not necessarily meet the Washington requirement of \"substantial bodily\n\nharm.\" We hold that the Washington and Oregon statutes are not legally comparable in this\n 5\nregard.\n\n\n\n\n Even though the convictions are not legally comparable, the Oregon conviction could be\n\nincluded in the offender score if they are factually comparable. But nothing in the record for the\n\nOregon attempted second degree assault conviction allows a finding that Arndt intended to cause\n\nan injury that satisfied the Washington definition of \"substantial bodily harm.\" As a result, this\n\n\nconviction is not factually comparable to a Washington offense.\n\n\n\n\n 5 Arndt also argues that the Oregon statute does not require proof that the assault caused\n substantial\" impairment and therefore that a protracted but insubstantial impairment or loss\n qualifies for conviction of second degree assault in Oregon but not in Washington. Because we\n find that the statutes are not legally comparable for another reason, we need not address this\n argument.\n\n 9\n\fNo. 43717 -1 - II\n\n\n\n In sum, attempted second degree assault in Oregon is not legally comparable to attempted\n\nsecond degree assault in Washington because the Oregon term \" serious physical injury\" is\n\nbroader than the Washington term \" substantial bodily harm.\" And there is no basis in the record\n\n\nof the Oregon conviction for finding factual comparability. Accordingly, the sentencing court\n\nerred in including the Oregon conviction in Arndt' s offender score\n\n DUII Convictions\n\n\n Arndt twice was convicted of DUII in Oregon for conduct that occurred in 1998. Arndt\n\n\nargues that even though the language of the Oregon and Washington driving under the influence\n\nstatutes is substantially similar, the offenses are not legally comparable because Washington and\n\nOregon have interpreted \" under the influence\" differently. We agree.\n\n a. Interpretation of Statutes\n\n\n In Oregon, a person commits DUII if the person drives a vehicle while the person \"[ i] s\n\n\nunder the influence of intoxicating liquor or a controlled substance.\" Former ORS 813. 010( 1)( b)\n\n\n 1991). The Washington driving under the influence ( DUI) statute in effect in 1998, former\n\nRCW 46. 61. 502( 1)( b) ( 1994), provides that a person is guilty of DUI for driving while \" under\n\nthe influence of or affected by intoxicating liquor or any drug.\" The elements of the offenses are\n\n\nthe same — both are committed by driving while under the influence of intoxicating liquor.6\nFormer ORS 813. 010( 1)( b); former RCW 46. 61. 502( 1)( b). Nevertheless, Arndt argues that even\n\n\nthough the statutory elements of the offenses are nearly identical, the offenses are not legally\n\n\n\n\n6 We discuss only the driving \" under the influence\" section of the DUI/DUII statutes because\nthat is the only section discussed by the parties. There are alternative theories of DUI / UII,\n D\nincluding proof of certain blood alcohol content, but these sections are not at issue.\n 10\n\fNo. 43 717 -1 - II\n\n\n\ncomparable because Oregon and Washington courts have interpreted \" under the influence\"\n\n 7\ndifferently.\n\n In Oregon, \" a person is under the influence of intoxicating liquor when he or she has\n\nconsumed enough liquor to adversely affect that person' s mental or physical faculties to some\n\nnoticeable or perceptible degree.\" Chartrand v. Coos Bay Tavern, Inc., 298 Or. 689, 699 -700,\n\n696 P.2d 513 ( 1985) ( emphasis added). In Oregon v. Moody, 201 Or. App. 58, 64, 116 P.3d 935\n\n 2005), the Oregon Court of Appeals interpreted this rule as requiring a showing of impairment\n\ndue to a controlled substance. In Washington, a person is under the influence of or affected by\n\nthe use of intoxicating liquor \" if the person' s ability to drive a motor vehicle is lessened in any\n\nappreciable degree.\" 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS:\n\n\nCRIMINAL 92. 10, at 286 ( 3d ed. 2008); see State v. Wilhelm, 78 Wash. App. 188, 193, 896 P.2d 105\n\n 1995); State v. Hansen, 15 Wash. App. 95, 95 -97, 546 P.2d 1242 ( 1976).\n\n b. Effect on Ability To Drive\n\n Arndt argues that the Oregon and Washington interpretations of \"under the influence\"\n\n\ndiffer in that the Washington interpretation focuses on a person' s actual ability to drive, while the\n\nOregon interpretation focuses on impairment of a person' s mental or physical faculties without\n\n\nreference to the ability to drive. Under Washington law direct evidence that the defendant' s\n\n\n\n\n7\n Initially, it is unclear whether court interpretations of statutory elements can defeat legal\ncomparability of statutes containing identical elements. When courts have adopted non -statutory\nelements of crimes, those non -statutory elements should be included in the comparability\nanalysis. See State Sublett, 176 Wash. 2d 58, 88, 292 P.3d 715 ( 2012) ( considering specific\n v.\n\nintent to steal an essential, nonstatutory element of second degree robbery); Lavery, 154 Wash. 2d\n\nat 255 -56 ( same). However, we found no Washington authority addressing whether or not\ncourts' interpretations of statutory elements also must be comparable. Because the State did not\nargue that court interpretations are irrelevant to the comparability analysis, we do not address\nthis issue.\n 11\n\fNo. 43717 -1 - II\n\n\n\nability to drive was affected is not required to convict under RCW 46. 61. 502( 1). Wilhelm, 78\n\n\nWn. App. at 192 -93. We have held that RCW 46. 61. 502 is violated if circumstantial evidence\n\n\nallows the fact finder to infer that the defendant' s ability to handle an automobile was lessened in\n\nan appreciable degree. Wilhelm, 78 Wash. App. at 192 -93. As a result, proof that a defendant' s\n\nmental or physical faculties are adversely affected as required under the Oregon statute would\n\nallow a Washington fact finder to infer that the defendant' s ability to drive was affected.\n\n However, under Washington law a fact finder is not required to infer that if a defendant' s\n\n\nmental or physical faculties are adversely affected his or her ability to drive also was affected.\n\nAccordingly, the facts required to convict under the Oregon statute would not necessarily result\n 8\nin a conviction under the Washington statute. This precludes a finding of legal comparability.\n\n\n We hold that the former Oregon DUII statute is not legally comparable to the former\n\nWashington DUI statute. Although the language of the statutes is identical, the respective\n\n\ninterpretations of the statutory language provide different standards.\n\n Factual Comparability\n\n Nothing in the record for the Oregon DUII convictions allow a finding that Arndt\n\nadmitted or stipulated in his guilty plea agreement that his intoxication affected his ability to\n\ndrive. As a result, the convictions are not factually comparable to a Washington offense.\n\n\n\n\n8 Arndt also argues that the Washington and Oregon statutes are not legally comparable based on\nan Oregon case suggesting that the Oregon DUII statute only requires the \" slightest degree\" of\nimpairment. Dyrdahl v. Dep' t of Transp., 204 Or. App. 509, 514 -16, 131 P.3d 770 ( 2006).\nBecause we find that the statutes are not legally comparable on other grounds, we need not\naddress this issue.\n\n\n 12\n\fNo. 43717 -1 - II\n\n\n\n The State failed to prove legal or factual comparability between the Oregon and\n\nWashington driving under the influence of intoxicants statutes. Accordingly, the sentencing\n\ncourt erred by including the two Oregon DUII convictions in calculating Arndt' s offender score.\n\n 4. Third Degree Rape\n\n\n Arndt was convicted of third degree rape in Oregon for conduct that occurred in May\n\n2001. He argues that his conviction is not comparable because the offense is defined more\n\n\nbroadly in Oregon than in Washington and the record does not show that his conduct met the\n\nmore narrow definition of the Washington offense. 9 We agree.\n\n a. Legal Comparability\n\n In Oregon, a person commits third degree rape by having sexual intercourse with another\n\nperson less than 16 years of age. ORS 163. 355. The comparable Washington offense is third\n\n\ndegree rape of a child, which a person commits by having sexual intercourse with another person\n\nwho is at least 14 years old but less than 16 years old and who is not married to the perpetrator,\n\n\nand the perpetrator is at least 48 months older than the victim. RCW 9A.44. 079.\n\n\n Both offenses require proof that the victim be less than 16 years old. But the Oregon\n\n\noffense is broader than the comparable Washington offense because the Washington offense\n\n\nrequires the State to prove additional elements —that the victim and perpetrator are not married\n\n\nand that the perpetrator is at least 48 months older than the victim. As a result, the Oregon\n\n\noffense is not legally comparable to the Washington offense.\n\n\n\n9 The State argues that Arndt did not make this argument in the sentencing court and cannot raise\nthe issue for the first time on appeal. However, Arndt did object to considering the Oregon\nconvictions on comparability grounds. In any event, improperly including an out -of state\n -\nconviction in the defendant' s offender score can be raised for the first time on appeal. Ford, 137\nWash. 2d at 484 -85.\n\n\n 13\n\fNo. 43717 -141\n\n\n\n b. Factual Comparability\n\n The next step is to determine whether the offenses are factually comparable —i.e.,\n\n\n\nwhether Arndt' s conduct would have allowed conviction under the Washington statute. Here,\n\n\nthe State cannot establish the additional Washington requirement that the victim not be married\n\n\nto the defendant. Arndt did not make any admission or stipulation regarding marital status and\n\nthe record from the Oregon proceeding does not reflect the marital status of Arndt or the victim.\n\n The State argues that the sentencing court may infer that Arndt and the victim were not\n\nmarried because ( 1) most people who are married would know their spouse' s age and Arndt\n\n\ntestified at sentencing in the present case that he did not know the victim was under 16 at the\n\ntime that they had sex, and ( 2) the 16 year old victim was below the minimum age to marry in\n\nOregon, which is 18 years old or 17 years old with parental permission. ORS 106. 010, . 060. But\n\n\nsentencing courts may only rely on facts in the out -of - tate record that are admitted or proved to\n s\n\nthe fact finder beyond a reasonable doubt in the out - - tate conviction. Lavery, 154 Wn.2d at\n of s\n\n258; Ortega, 120 Wash. App. at 174. There was no evidence in the Oregon proceeding regarding\n\nmarital status, and a finding regarding marital status was not necessary for the conviction.\n\nInferences from Arndt' s testimony at sentencing in the present case or from the Oregon marriage\n\nstatute are not sufficient for a Washington sentencing court to conclude that the fact that Arndt\n\nand the victim were not married was proved beyond a reasonable doubt in the Oregon\n\n 10\nproceeding.\n\n\n\n\nio The State' s arguments do not show that it was impossible for Arndt and the victim to have\nbeen married. It is possible that a person would not know his spouse' s age. And in California\nthere is no minimum age for marriage with a court order and written parental consent, Cal. Fam.\nCode 302, while in Washington, a superior court judge may waive the age requirements on a\nshowing of necessity. RCW 26. 04. 010( 2).\n 14\n\fNo. 43717 -1 - II\n\n\n\n The State failed to prove legal or factual comparability between the Oregon third degree\n\nrape statute and the Washington third degree rape of a child statute. Accordingly, the sentencing\n\ncourt erred by including the Oregon third degree rape conviction in calculating Arndt' s offender\n\nMIGMM\n\n\n\nC. EVIDENCE ALLOWED ON RESENTENCING\n\n\n Arndt contends with a citation to a single case and without argument that upon remand\n\n\nthe State is limited to the record as it existed at the prior sentencing hearing. The State does not\n\ndiscuss whether it should have another opportunity to prove factual comparability of Arndt' s\n\nOregon attempted second degree assault, DUII, and third degree rape convictions on\n\n\nresentencing. Whether the State may attempt to introduce evidence regarding these convictions\n\non remand is not before this court. State v. Lucero, 168 Wash. 2d 785, 789 n. 1, 230 P.3d 165\n\n\n 2010). We leave that issue to the sentencing court. Lucero, 168 Wash. 2d at 789 n. l.\n\nD. CONCLUSION\n\n\n We hold that Arndt' s Oregon conviction for unauthorized use of a vehicle was\n\n\ncomparable to a Washington conviction and therefore was included properly in Arndt' s offender\n\nscore. However, we hold that Arndt' s Oregon convictions for attempted second degree assault,\n\n\nDUII, and third degree rape were not legally or factually comparable to Washington convictions\n\n\n\n\n 15\n\fNo. 43717 -1 - II\n\n\n\nand therefore should not have been included in Arndt' s offender score. Accordingly, we remand\n\nfor resentencing.\n\n\n I & r-%\n\n ij I\n 1 1\n MAXA, J.\n\n\n\n\nWe concur:\n\n\n\n\n A.C. J.\n\n\n\n\nB.k RGE .\n\n\n\n\n 16\n\f", "ocr": false, "opinion_id": 2652217 } ]
Court of Appeals of Washington
Court of Appeals of Washington
SA
Washington, WA
280,085
Biggs, Forman, McLAUGHLIN, Per Curiam
1968-05-13
false
ruth-m-henley-v-anthony-j-celebrezze-secretary-of-health-education-and
null
Ruth M. Henley v. Anthony J. Celebrezze, Secretary of Health, Education and Welfare
Ruth M. HENLEY, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare
Patrick D. Healy, West New York, N. J., for appellant., Thomas J. Alworth, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee.
null
null
null
null
null
null
null
Argued March 19, 1968.
null
null
2
Published
null
<parties data-order="0" data-type="parties" id="b555-10"> Ruth M. HENLEY, Appellant, v. Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b555-13"> No. 16916. </docketnumber><br><court data-order="2" data-type="court" id="b555-14"> United States Court of Appeals Third Circuit. </court><br><otherdate data-order="3" data-type="otherdate" id="b555-15"> Argued March 19, 1968. </otherdate><br><decisiondate data-order="4" data-type="decisiondate" id="b555-16"> Decided May 13, 1968. </decisiondate><br><attorneys data-order="5" data-type="attorneys" id="b555-21"> Patrick D. Healy, West New York, N. J., for appellant. </attorneys><br><attorneys data-order="6" data-type="attorneys" id="b555-22"> Thomas J. Alworth, Asst. U. S. Atty., Newark, N. J. (David M. Satz, Jr., U. S. Atty., Newark, N. J., on the brief), for appellee. </attorneys><br><p data-order="7" data-type="judges" id="b555-23"> Before BIGGS, McLAUGHLIN and FORMAN, Circuit Judges, </p>
[ "394 F.2d 507" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/394/394.F2d.507.16916_1.html", "author_id": null, "opinion_text": "394 F.2d 507\n Ruth M. HENLEY, Appellant,v.Anthony J. CELEBREZZE, Secretary of Health, Education and Welfare.\n No. 16916.\n United States Court of Appeals Third Circuit.\n Argued March 19, 1968.Decided May 13, 1968.\n \n Patrick D. Healy, West New York, N.J., for appellant.\n Thomas J. Alworth, Asst. U.S. Atty., Newark, N.J. (David M. Satz, Jr., U.S. Atty., Newark, N.J., on the brief), for appellee.\n Before BIGGS, McLAUGHLIN and FORMAN, Circuit Judges,\n OPINION OF THE COURT\n PER CURIAM.\n \n \n 1\n The appellant Henley appeals from the granting of summary judgment in favor of the appellee Secretary Celebrezze. On April 16, 1959, Mrs. Henley filed an application with the Department of Health, Education and Welfare to establish a period of disability which would entitle her to benefits under the Social Security Act, 42 U.S.C. 416(i). Her application was denied both initially and upon reconsideration. A hearing was granted but the hearing examiner denied Mrs. Henley's claim based on the testimony and documents presented to him. The Appeals Council of the Social Security Administration declined to review the hearing examiner's decision. Mrs. Henley brought suit in the court below pursuant to 42 U.S.C. 405(g) to review the final decision of the Secretary. Relief was refused, and as noted, the court below granted summary judgment for the appellee.\n \n \n 2\n The primary question before the court below and before this court is whether there was substantial evidence in the record to support the hearing examiner's finding that Mrs. Henley was not 'disabled', as that term is defined in 42 U.S.C. 423(c)(2) of the Act, on September 30, 1948, the date on which Mrs. Henley last met the earnings requirement of 42 U.S.C. 423(c)(1) which would entitle her to disability benefits. 42 U.S.C. 405(g). We agree with the court below that there is substantial evidence in the record to support the finding by the hearing examiner. We also find no merit in the other contentions raised by the Appellant.\n \n \n 3\n Accordingly, the judgment will be affirmed.\n \n ", "ocr": false, "opinion_id": 280085 } ]
Third Circuit
Court of Appeals for the Third Circuit
F
USA, Federal
246,670
Sanborn, Vogel, Woodrough
1958-12-15
false
hyman-rosen-and-harry-grossman-v-westinghouse-electric-supply-company-a
null
Hyman Rosen and Harry Grossman v. Westinghouse Electric Supply Company, a Corporation
Hyman ROSEN and Harry Grossman, Appellants, v. WESTINGHOUSE ELECTRIC SUPPLY COMPANY, a Corporation, Appellee
Charles Rubenstein, Minneapolis, Minn. (Geo. N. Guttmann and Samuel D. Finkelstein, Minneapolis, Minn., were with him on the brief), for appellants., M. L. Culhane, Minneapolis, Minn. (M. E. Culhane and James E. Culhane, Minneapolis, Minn., were with him on the brief), for appellee.
null
null
null
null
null
null
null
null
null
null
3
Published
null
<parties data-order="0" data-type="parties" id="b570-6"> Hyman ROSEN and Harry Grossman, Appellants, v. WESTINGHOUSE ELECTRIC SUPPLY COMPANY, a corporation, Appellee. </parties><docketnumber data-order="1" data-type="docketnumber" id="Ag6"> No. 15997. </docketnumber><br><court data-order="2" data-type="court" id="b570-8"> United States Court of Appeals Eighth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b570-9"> Dec. 15, 1958. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b570-14"> Charles Rubenstein, Minneapolis, Minn. (Geo. N. Guttmann and Samuel D. Finkelstein, Minneapolis, Minn., were with him on the brief), for appellants. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b570-15"> M. L. Culhane, Minneapolis, Minn. (M. E. Culhane and James E. Culhane, Minneapolis, Minn., were with him on the brief), for appellee. </attorneys><br><p data-order="6" data-type="judges" id="b571-4"> <span citation-index="1" class="star-pagination" label="515"> *515 </span> Before SANBORN, WOODROUGH and VOGEL, Circuit Judges. </p>
[ "261 F.2d 514" ]
[ { "author_str": "Sanborn", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/261/261.F2d.514.15997_1.html", "author_id": null, "opinion_text": "261 F.2d 514\n Hyman ROSEN and Harry Grossman, Appellants,v.WESTINGHOUSE ELECTRIC SUPPLY COMPANY, a corporation, Appellee.\n No. 15997.\n United States Court of Appeals Eighth Circuit.\n December 15, 1958.\n \n Charles Rubenstein, Minneapolis, Minn. (Geo. N. Guttmann and Samuel D. Finkelstein, Minneapolis, Minn., were with him on the brief), for appellants.\n M. L. Culhane, Minneapolis, Minn. (M. E. Culhane and James E. Culhane, Minneapolis, Minn., were with him on the brief), for appellee.\n Before SANBORN, WOODROUGH and VOGEL, Circuit Judges.\n SANBORN, Circuit Judge.\n \n \n 1\n This is an appeal from a judgment for the plaintiff (appellee) in an action upon a promissory note reading as follows:\n \n \n 2\n \"$17082.44 June 3, 1954.\n \n \n 3\n \"Sixty days after date I &#8212; We promise to pay to the order of Westinghouse Electric Supply Co. Seventeen thousand eighty-two and 44/100 Dollars Payable at 254 E. 4th St., St. Paul, Minn.\n \n \n 4\n \"Value received\n \"Due 8/2/54\n \"Northtown Furniture Company,\n \"Hyman Rosen,\n \"Harry Grossman\"\n \n \n 5\n Jurisdiction is based on diversity of citizenship.\n \n \n 6\n The signature \"Northtown Furniture Company\" was printed in ink just above the longhand signatures of Rosen and Grossman. The Company was adjudged a bankrupt in October, 1954, and this action against the individual makers of the note was brought April 15, 1955.\n \n \n 7\n The defendants in their amended answer to the plaintiff's complaint, filed April 17, 1956, admitted signing the note, but without intending to obligate themselves personally or individually. They asserted that when the note was signed it was the intention of the parties \"that the defendants' signatures were to appear as agents and officers of the Northtown Furniture Company, a Minnesota corporation, and not as their individual signatures.\" The prayer of the amended answer was for a judgment reforming the note to conform to the alleged mutual intent of the parties that the defendants were not to be liable as individuals.\n \n \n 8\n The trial court, after hearing and considering all of the evidence upon the issue whether the individual defendants had or had not signed the note merely on behalf of the Company as its officers and with the understanding on the plaintiff's part that they were not assuming any personal liability, resolved that issue in favor of the plaintiff, determined that no mutual mistake warranting reformation of the note had been shown, and entered judgment accordingly.\n \n \n 9\n In their brief the defendants say: \"The issue here is one of fact and the facts must be evaluated and weighed to determine if the trial court was in error.\" We are once more referred to the case of United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, and are, in effect, urged to hold that \"on the entire evidence\" we are \"left with the definite and firm conviction that a mistake has been committed.\" The best answer we can make to that argument is to quote what this Court said in Pendergrass v. New York Life Ins. Co., 8 Cir., 181 F.2d 136, 137-138, in response to a similar contention:\n \n \n 10\n \"The appellants have misconceived the functions of this Court, the jurisdiction of which is appellate. In the case of Cleo Syrup Corporation v. Coca-Cola Co., 8 Cir., 139 F.2d 416, 417-418, 150 A.L.R. 1056, we said: `* * * This Court, upon review, will not retry issues of fact or substitute its judgment with respect to such issues for that of the trial court. Storley v. Armour &amp; Co., 8 Cir., 107 F.2d 499, 513; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, 8 Cir., 138 F.2d 396, 398. The power of a trial court to decide doubtful issues of fact is not limited to deciding them correctly. Thompson v. Terminal Shares, Inc., 8 Cir., 89 F.2d 652, 655; Pittsburgh Plate Glass Co. v. National Labor Relations Board, 8 Cir., 113 F.2d 698, 701 (affirmed 313 U.S. 146, 61 S. Ct. 908, 85 L. Ed. 1251); Travelers Mutual Casualty Co. v. Rector, supra. In a nonjury case, this Court may not set aside a finding of fact of a trial court unless there is no substantial evidence to sustain it, unless it is against the clear weight of the evidence, or unless it was induced by an erroneous view of the law. Aetna Life Ins. Co. v. Kepler, 8 Cir., 116 F.2d 1, 4, 5; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 138 F.2d 197, 199; Travelers Mutual Casualty Co. v. Rector, supra.'\n \n \n 11\n \"It is true that in United States v. United States Gypsum Co., 333 U.S. 364, at page 395, 68 S. Ct. 525, 542, 92 L. Ed. 746, the Supreme Court said: `A finding is \"clearly erroneous\" when although there is 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.' The opinion in that case shows that the Supreme Court regarded the findings which it held to be erroneous as contrary to the clear weight of the evidence. The statement above quoted, when read in connection with what was later said by the Supreme Court on the same subject in Graver Tank &amp; Mfg. Co., Inc., v. Linde Air Products Co., 336 U.S. 271, 275-276, 69 S. Ct. 535, 93 L. Ed. 672, furnishes no warrant for the belief that we can retry doubtful issues of fact upon a cold record, and substitute our judgment for that of the trial court with respect to such issues, or that a district court, in nonjury cases, is to act as a sort of special master for this Court, to report testimony, to make advisory findings, and to enter an advisory judgment.\n \n \n 12\n \"There is no logical reason for placing the findings of fact of a trial judge upon a substantially lower level of conclusiveness than the fact findings of a jury of laymen, or those of an administrative agency, which may be set aside only if unsupported by substantial evidence. The findings of fact of a trial court should be accepted by this Court as being correct unless it can be clearly demonstrated that they are without adequate evidentiary support or were induced by an erroneous view of the law. The entire responsibility for deciding doubtful fact questions in a nonjury case should be, and we think it is, that of the district court. The existence of any doubt as to whether the trial court or this Court is the ultimate trier of fact issues in nonjury cases is, we think, detrimental to the orderly administration of justice, impairs the confidence of litigants and the public in the decisions of the district courts, and multiplies the number of appeals in such cases.\n \n \n 13\n \"The sufficiency of the evidence to support a trial court's findings and judgment is, of course, a proper question on review. Whether a reviewing court thinks that it would or might have made different findings of fact or have entered a different judgment, had it been the trier of the facts, is a matter of no consequence. On review, this Court should refrain from exercising any of the trial functions conferred by law upon the district courts.\"\n \n \n 14\n We find nothing in the record on appeal in the instant case which would justify a reversal of the judgment appealed from.\n \n \n 15\n The judgment is affirmed.\n \n ", "ocr": false, "opinion_id": 246670 } ]
Eighth Circuit
Court of Appeals for the Eighth Circuit
F
USA, Federal
626,941
Hamilton, Keenan, Traxler
2012-04-09
false
rosetta-stone-ltd-v-google-inc
null
Rosetta Stone Ltd. v. Google, Inc.
ROSETTA STONE LTD., Plaintiff-Appellant, v. GOOGLE, INCORPORATED, Defendant-Appellee. the UK Intellectual Property Law Society, Amicus Curiae, Eric Goldman; Public Citizen; Martin Schwimmer, Limited Intervenors. International Trademark Association; Blues Destiny Records, LLC; Carfax, Incorporated; Ford Motor Company; Harmon International Industries, Incorporated; The Media Institute; Viacom, Inc.; Burlington Coat Factory Warehouse Corporation; Business Software Alliance; Chanel, Incorporated; Coach, Incorporated; Government Employees Insurance Company; Harrah’s Entertainment, Incorporated; Longchamp USA, Incorporated; National Football League; Oakley, Incorporated; Professional Golfers’ Association of America, Incorporated; Rolls-Royce North America, Incorporated; S.A.S. Jean Cassegrain; Sunkist Growers, Incorporated; Swarovski North America, Ltd.; The Association for Competitive Technology; The Sunrider Corporation; Tivo, Incorporated; Tiffany & Company; Tumi, Incorporated; United Continental Holdings, Incorporated; 1-800 Contacts, Incorporated; Conva-Tec, Incorporated; Guru Denim, Incorporated; Monster Cable Products, Incorporated; PetMed Express, Inc.; Volunteers of America, Amici Supporting Appellant, Public Citizen; Public Knowledge; Electronic Frontier Foundation; eBay Incorporated; Yahoo! Incorporated, Amici Supporting Appellee
ARGUED: Clifford M. Sloan, Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, D.C., for Appellant. Margret Mary Caruso, Quinn, Emanuel, Urquhart & Sullivan, LLP, Redwood Shores, California, for Appellee. ON BRIEF: Mitchell S. Ettinger, Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher & Flom, LLP, Washington, D.C., for Appellant. Cheryl A. Galvin, Henry Lien, Austin D. Tarango, Quinn, Emanuel, Urquhart & Sullivan, LLP, Redwood Shores, California; Jonathan D. Frieden, Odin, Feldman & Pittleman, PC, Fairfax, Virginia, for Appellee. Charles Lee Thomason, Spalding & Thomason, Bardstown, Kentucky, for The UK Intellectual Property Law Society, Amicus Curiae. David H. Bernstein, Debevoise & Plimpton LLP, New York, New York; Kurt E. Anderson, Giordano, Halleran & Ciesla, PC, Red Bank, New Jersey; A. Justin Ourso, III, Jones, Walker, Waechter, Poitevent, Carrere & Denegre LLP, Baton Rouge, Louisiana, for International Trademark Association, Amicus Supporting Appellant. Marcia B. Paul, Kevan Choset, Davis Wright Tremaine LLP, New York, New York, Daniel P. Reing, Davis Wright Tremaine LLP, Washington, D.C., for Blues Destiny Records, LLC, Carfax, Incorporated, Harmon International Industries, Incorporated, The Media Institute, and Viacom, Inc.; Mark S. Sparschu, Brooks Kushman PC, Southfield, Michigan, for Ford Motor Company, Amici Supporting Appellant. Randall K. Miller, Arnold & Porter, McLean, Virginia, Roberta L. Horton, Tricia A. Cross, Brent S. LaBarge, Arnold & Porter LLP, Washington, D.C., for Burlington Coat Factory Warehouse Corporation, Business Software Alliance, Chanel, Incorporated, Coach, Incorporated, Government Employees Insurance Company, Harrah’s Entertainment, Incorporated, Longchamp USA, Incorporated, National Football League, Oakley, Incorporated, Professional Golfers’ Association of America, Incorporated, Rolls-Royce North America, Incorporated, S.A.S. Jean Cassegrain, Sunkist Growers, Incorporated, Swarovski North America, Ltd., The Association for Competitive Technology, The Sunrider Corporation, TiVo, Incorporated, Tiffany & Company, Tumi, Incorporated, and United Continental Holdings, Incorporated, Amici Supporting Appellant. Brad R. Newberg, Reed Smith LLP, Falls Church, Virginia, for 1-800 Contacts, Incorporated, ConvaTec, Incorporated, Guru Denim, Incorporated, Monster Cable Products, Incorporated, and PetMed Express, Inc., Amici Supporting Appellant. Thomas G. Southard, Karl Wm. Means, Alan B. Sternstein, Shulman, Rogers, Gandal, Pordy & Ecker, PA, Potomac, Maryland, for Volunteers of America, Amicus Supporting Appellant. Paul Alan Levy, Public Citizen Litigation Group, Washington, D.C., for Public Citizen, Amicus Supporting Appellee. Harold Feld, John Bergmayer, Rashmi Rangnath, Public Knowledge, Washington, D.C.; Corynne McSherry, Electronic Frontier Foundation, San Francisco, California, for Public Knowledge and Electronic Frontier Foundation, Amici Supporting Appellee. R. Bruce Rich, Jonathan Bloom, Mark J. Fiore, Weil, Gotshal & Manges LLP, New York, New York, Michael Lyle, Weil, Gotshal & Manges LLP, Washington, D.C., for Yahoo! Incorporated and eBay, Incorporated, Amici Supporting Appellee.
null
null
null
null
null
null
null
Argued: Sept. 22, 2011.
null
null
27
Published
null
<parties id="b170-8"> ROSETTA STONE LTD., Plaintiff-Appellant, v. GOOGLE, INCORPORATED, Defendant-Appellee. The UK Intellectual Property Law Society, Amicus Curiae, Eric Goldman; Public Citizen; Martin Schwimmer, Limited Intervenors. International Trademark Association; Blues Destiny Records, LLC; Carfax, Incorporated; Ford Motor Company; Harmon International Industries, Incorporated; The Media Institute; Viacom, Inc.; Burlington Coat Factory Warehouse Corporation; Business Software Alliance; Chanel, Incorporated; Coach, Incorporated; Government Employees Insurance Company; Harrah’s Entertainment, Incorporated; Longchamp USA, Incorporated; National Football League; Oakley, Incorporated; Professional Golfers’ Association of America, Incorporated; Rolls-Royce North America, Incorporated; S.A.S. Jean Cassegrain; Sunkist Growers, Incorporated; Swarovski North America, Ltd.; The Association for Competitive Technology; The Sunrider Corporation; Tivo, Incorporated; Tiffany &amp; Company; Tumi, Incorporated; United Continental Holdings, Incorporated; 1-800 Contacts, Incorporated; Conva-Tec, Incorporated; Guru Denim, Incorporated; Monster Cable Products, Incorporated; PetMed Express, Inc.; Volunteers of America, Amici Supporting Appellant, Public Citizen; Public Knowledge; Electronic Frontier Foundation; eBay Incorporated; Yahoo! Incorporated, Amici Supporting Appellee. </parties><br><docketnumber id="b170-15"> No. 10-2007. </docketnumber><br><court id="b170-16"> United States Court of Appeals, Fourth Circuit. </court><br><otherdate id="b170-17"> Argued: Sept. 22, 2011. </otherdate><br><decisiondate id="b170-18"> Decided: April 9, 2012. </decisiondate><br><attorneys id="b174-22"> <span citation-index="1" class="star-pagination" label="148"> *148 </span> ARGUED: Clifford M. Sloan, Skadden, Arps, Slate, Meagher &amp; Flom, LLP, Washington, D.C., for Appellant. Margret Mary Caruso, Quinn, Emanuel, Urquhart &amp; Sullivan, LLP, Redwood Shores, California, for Appellee. ON BRIEF: Mitchell S. Ettinger, Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher &amp; Flom, LLP, Washington, D.C., for Appellant. Cheryl A. Galvin, Henry Lien, Austin D. Tarango, Quinn, Emanuel, Urquhart <em> &amp; </em> Sullivan, LLP, Redwood Shores, California; Jonathan D. Frieden, Odin, Feldman &amp; Pittleman, PC, Fairfax, Virginia, for Appellee. Charles Lee Thomason, Spalding <em> &amp; </em> Thomason, Bardstown, Kentucky, for The UK Intellectual Property Law Society, Amicus Curiae. David H. Bernstein, Debevoise <em> &amp; </em> Plimpton LLP, New York, New York; Kurt E. Anderson, Giordano, Halleran &amp; Ciesla, PC, Red Bank, New <span citation-index="1" class="star-pagination" label="149"> *149 </span> Jersey; A. Justin Ourso, III, Jones, Walker, Waechter, Poitevent, Carrere &amp; Denegre LLP, Baton Rouge, Louisiana, for International Trademark Association, Amicus Supporting Appellant. Marcia B. Paul, Kevan Choset, Davis Wright Tremaine LLP, New York, New York, Daniel P. Reing, Davis Wright Tremaine LLP, Washington, D.C., for Blues Destiny Records, LLC, Carfax, Incorporated, Harmon International Industries, Incorporated, The Media Institute, and Viacom, Inc.; Mark S. Sparschu, Brooks Kushman PC, Southfield, Michigan, for Ford Motor Company, Amici Supporting Appellant. Randall K. Miller, Arnold &amp; Porter, McLean, Virginia, Roberta L. Horton, Tricia A. Cross, Brent S. LaBarge, Arnold &amp; Porter LLP, Washington, D.C., for Burlington Coat Factory Warehouse Corporation, Business Software Alliance, Chanel, Incorporated, Coach, Incorporated, Government Employees Insurance Company, Harrah’s Entertainment, Incorporated, Longchamp USA, Incorporated, National Football League, Oakley, Incorporated, Professional Golfers’ Association of America, Incorporated, Rolls-Royce North America, Incorporated, S.A.S. Jean Cassegrain, Sunkist Growers, Incorporated, Swarovski North America, Ltd., The Association for Competitive Technology, The Sunrider Corporation, TiVo, Incorporated, Tiffany &amp; Company, Tumi, Incorporated, and United Continental Holdings, Incorporated, Amici Supporting Appellant. Brad R. Newberg, Reed Smith LLP, Falls Church, Virginia, for 1-800 Contacts, Incorporated, ConvaTec, Incorporated, Guru Denim, Incorporated, Monster Cable Products, Incorporated, and PetMed Express, Inc., Amici Supporting Appellant. Thomas G. Southard, Karl Wm. Means, Alan B. Sternstein, Shulman, Rogers, Gandal, Pordy &amp; Ecker, PA, Potomac, Maryland, for Volunteers of America, Amicus Supporting Appellant. Paul Alan Levy, Public Citizen Litigation Group, Washington, D.C., for Public Citizen, Amicus Supporting Appellee. Harold Feld, John Bergmayer, Rashmi Rangnath, Public Knowledge, Washington, D.C.; Corynne McSherry, Electronic Frontier Foundation, San Francisco, California, for Public Knowledge and Electronic Frontier Foundation, Amici Supporting Appellee. R. Bruce Rich, Jonathan Bloom, Mark J. Fiore, Weil, Gotshal &amp; Manges LLP, New York, New York, Michael Lyle, Weil, Gotshal <em> &amp; </em> Manges LLP, Washington, D.C., for Yahoo! Incorporated and eBay, Incorporated, Amici Supporting Appellee. </attorneys><br><judges id="b175-6"> Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior Circuit Judge. </judges><br><judges id="b175-7"> Affirmed in part, vacated in part, and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KEENAN and Senior Judge HAMILTON joined. </judges>
[ "676 F.3d 144" ]
[ { "author_str": "Traxler", "per_curiam": false, "type": "010combined", "page_count": 47, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/102007.P.pdf", "author_id": null, "opinion_text": "\n676 F.3d 144 (2012)\nROSETTA STONE LTD., Plaintiff-Appellant,\nv.\nGOOGLE, INCORPORATED, Defendant-Appellee.\nThe UK Intellectual Property Law Society, Amicus Curiae,\nEric Goldman; Public Citizen; Martin Schwimmer, Limited Intervenors.\nInternational Trademark Association; Blues Destiny Records, LLC; Carfax, Incorporated; Ford Motor Company; Harmon International Industries, Incorporated; the Media Institute; Viacom, Inc.; Burlington Coat Factory Warehouse Corporation; Business Software Alliance; Chanel, Incorporated; Coach, Incorporated; Government Employees Insurance Company; Harrah's Entertainment, Incorporated; Longchamp USA, Incorporated; National Football League; Oakley, Incorporated; Professional Golfers' Association of America, Incorporated; Rolls-Royce North America, Incorporated; S.A.S. Jean Cassegrain; Sunkist Growers, Incorporated; Swarovski North America, Ltd.; The Association for Competitive Technology; The Sunrider Corporation; Tivo, Incorporated; Tiffany &amp; Company; Tumi, Incorporated; United Continental Holdings, Incorporated; 1-800 Contacts, Incorporated; ConvaTec, Incorporated; Guru Denim, Incorporated; Monster Cable Products, Incorporated; PetMed Express, Inc.; Volunteers of America, Amici Supporting Appellant,\nPublic Citizen; Public Knowledge; Electronic Frontier Foundation; eBay Incorporated; Yahoo! Incorporated, Amici Supporting Appellee.\nNo. 10-2007.\nUnited States Court of Appeals, Fourth Circuit.\nArgued: September 22, 2011.\nDecided: April 9, 2012.\n*148 ARGUED: Clifford M. Sloan, Skadden, Arps, Slate, Meagher &amp; Flom, LLP, Washington, D.C., for Appellant. Margret Mary Caruso, Quinn, Emanuel, Urquhart &amp; Sullivan, LLP, Redwood Shores, California, for Appellee. ON BRIEF: Mitchell S. Ettinger, Jennifer L. Spaziano, Skadden, Arps, Slate, Meagher &amp; Flom, LLP, Washington, D.C., for Appellant. Cheryl A. Galvin, Henry Lien, Austin D. Tarango, Quinn, Emanuel, Urquhart &amp; Sullivan, LLP, Redwood Shores, California; Jonathan D. Frieden, Odin, Feldman &amp; Pittleman, PC, Fairfax, Virginia, for Appellee. Charles Lee Thomason, Spalding &amp; Thomason, Bardstown, Kentucky, for The UK Intellectual Property Law Society, Amicus Curiae. David H. Bernstein, Debevoise &amp; Plimpton LLP, New York, New York; Kurt E. Anderson, Giordano, Halleran &amp; Ciesla, PC, Red Bank, New *149 Jersey; A. Justin Ourso, III, Jones, Walker, Waechter, Poitevent, Carrere &amp; Denegre LLP, Baton Rouge, Louisiana, for International Trademark Association, Amicus Supporting Appellant. Marcia B. Paul, Kevan Choset, Davis Wright Tremaine LLP, New York, New York, Daniel P. Reing, Davis Wright Tremaine LLP, Washington, D.C., for Blues Destiny Records, LLC, Carfax, Incorporated, Harmon International Industries, Incorporated, The Media Institute, and Viacom, Inc.; Mark S. Sparschu, Brooks Kushman PC, Southfield, Michigan, for Ford Motor Company, Amici Supporting Appellant. Randall K. Miller, Arnold &amp; Porter, McLean, Virginia, Roberta L. Horton, Tricia A. Cross, Brent S. LaBarge, Arnold &amp; Porter LLP, Washington, D.C., for Burlington Coat Factory Warehouse Corporation, Business Software Alliance, Chanel, Incorporated, Coach, Incorporated, Government Employees Insurance Company, Harrah's Entertainment, Incorporated, Longchamp USA, Incorporated, National Football League, Oakley, Incorporated, Professional Golfers' Association of America, Incorporated, Rolls-Royce North America, Incorporated, S.A.S. Jean Cassegrain, Sunkist Growers, Incorporated, Swarovski North America, Ltd., The Association for Competitive Technology, The Sunrider Corporation, TiVo, Incorporated, Tiffany &amp; Company, Tumi, Incorporated, and United Continental Holdings, Incorporated, Amici Supporting Appellant. Brad R. Newberg, Reed Smith LLP, Falls Church, Virginia, for 1-800 Contacts, Incorporated, ConvaTec, Incorporated, Guru Denim, Incorporated, Monster Cable Products, Incorporated, and PetMed Express, Inc., Amici Supporting Appellant. Thomas G. Southard, Karl Wm. Means, Alan B. Sternstein, Shulman, Rogers, Gandal, Pordy &amp; Ecker, PA, Potomac, Maryland, for Volunteers of America, Amicus Supporting Appellant. Paul Alan Levy, Public Citizen Litigation Group, Washington, D.C., for Public Citizen, Amicus Supporting Appellee. Harold Feld, John Bergmayer, Rashmi Rangnath, Public Knowledge, Washington, D.C.; Corynne McSherry, Electronic Frontier Foundation, San Francisco, California, for Public Knowledge and Electronic Frontier Foundation, Amici Supporting Appellee. R. Bruce Rich, Jonathan Bloom, Mark J. Fiore, Weil, Gotshal &amp; Manges LLP, New York, New York, Michael Lyle, Weil, Gotshal &amp; Manges LLP, Washington, D.C., for Yahoo! Incorporated and eBay, Incorporated, Amici Supporting Appellee.\nBefore TRAXLER, Chief Judge, KEENAN, Circuit Judge, and HAMILTON, Senior Circuit Judge.\nAffirmed in part, vacated in part, and remanded by published opinion. Chief Judge TRAXLER wrote the opinion, in which Judge KEENAN and Senior Judge HAMILTON joined.\n\nOPINION\nTRAXLER, Chief Judge:\nAppellant Rosetta Stone Ltd. appeals from an order, see Rosetta Stone Ltd. v. Google Inc., 730 F.Supp.2d 531 (E.D.Va. 2010), granting summary judgment against Rosetta Stone on its claims against Appellee Google Inc. for trademark infringement, see 15 U.S.C. § 1114(1)(a); contributory and vicarious trademark infringement; and trademark dilution, see 15 U.S.C. § 1125(c)(1). Rosetta Stone also appeals from an order dismissing its unjust enrichment claim under Virginia Law. See Rosetta Stone Ltd. v. Google Inc., 732 F.Supp.2d 628 (E.D.Va.2010). For the reasons that follow, we affirm the district court's order with respect to the vicarious infringement and unjust enrichment claims; however, we vacate the district *150 court's order with respect to the direct infringement, contributory infringement and dilution claims and remand these claims for further proceedings.\n\nI. Background\nIn conducting a de novo review of the district court's order granting summary judgment in favor of Google, \"we view the facts and draw all reasonable inferences therefrom in the light most favorable to [Rosetta Stone], as the nonmoving party.\" Georgia Pac. Consumer Prods., LP v. Von Drehle Corp., 618 F.3d 441, 445 (4th Cir. 2010). Bearing this standard in mind, we review the underlying facts briefly.\nRosetta Stone began in 1992 as a small, family-owned business that marketed its language-learning software under the brand name \"Rosetta Stone.\"[1] By 2006, Rosetta Stone had become an industry leader in technology-based language-learning products and online services, and, by January 2010, it had become a publicly traded corporation with 1,738 employees and gross revenues of approximately $252 million. Its products consist of \"software, online services and audio practice tools\" available in over thirty languages. J.A. 203.\nRosetta Stone owns and uses several registered marks in connection with its products and services: ROSETTA STONE, ROSETTA STONE LANGUAGE LEARNING SUCCESS, ROSETTASTONE.COM, and ROSETTA WORLD. Using this family of registered marks, Rosetta Stone markets its brand through various types of media, including the Internet, television, radio, magazines and other print media, and kiosks in public venues. From 2003 through 2009, Rosetta Stone spent approximately $57 million for television and radio advertising, $40 million for print media marketing, and $12.5 million to advertise on the Internet. In 2009, Rosetta Stone's marks enjoyed the highest level of brand recognition by far in the domestic language-learning market.[2] Rosetta Stone has achieved international success as well, with its products in use in over 150 countries.\nRosetta Stone began advertising in connection with Google's website and online services in 2002 and has continued to do so since that time. Google operates one of the world's most popular Internet search engines—programs that enable individuals to find websites and online content, generally through the use of a \"keyword\" search. See Retail Servs., Inc. v. Freebies Publ'g, 364 F.3d 535, 541 n. 1 (4th Cir.2004). When an Internet user enters a word or phrase—the keyword or keywords—into Google's search engine, Google returns a results list of links to *151 websites that the search engine has determined to be relevant based on a proprietary algorithm.\nIn addition to the natural list of results produced by the keyword search, Google's search engine also displays paid advertisements known as \"Sponsored Links\" with the natural results of an Internet search. Google's AdWords advertising platform permits a sponsor to \"purchase\" keywords that trigger the appearance of the sponsor's advertisement and link when the keyword is entered as a search term. In other words, an advertiser purchases the right to have his ad and accompanying link displayed with the search results for a keyword or combination of words relevant to the advertiser's business. Most sponsors advertising with Google pay on a \"cost-per-click\" basis, meaning that the advertiser pays whenever a user of Google's search engine clicks on the sponsored link.\nGoogle displays up to three sponsored links in a highlighted box immediately above the natural search results, and it also displays sponsored links to the right of the search results, but separated by a vertical line. As this suggests, more than one sponsor can purchase the same keyword and have a link displayed when a search for that keyword is conducted. Would-be advertisers purchase their desired keywords through an auction where advertisers bid competitively against each other for page position on the search results page. Generally speaking, users of the Internet are apparently more likely to click on ads that appear higher up on the search results page. Accordingly, an advertiser will try to outbid its competitors for the top positions in order to maximize the number of clicks on the advertiser's text ads. For the advertiser, more clicks yield increased web traffic, which means more potential website sales. Google, in turn, benefits by placing the most relevant ads in the most desirable locations, which increases the likelihood of a high click-through rate and leads to increased advertising revenue.\nAn advertiser must register for a Google AdWords account before bidding on a keyword. Under AdWords' boilerplate terms and conditions, the account holder must agree to assume responsibility for its selected keywords, for all advertising content, and for \"ensuring that [its] use of the keywords does not violate any applicable laws.\" J.A. 4081. Account holders must also agree to refrain from \"advertis[ing] anything illegal or engag[ing] in any illegal or fraudulent business practice.\" J.A. 2382.\nPrior to 2004, Google's policy precluded both the use of trademarks in the text of an advertisement and the use of trademarks as keywords upon request of the trademark owner. In 2004, Google loosened its trademark usage policy to allow the use of third-party trademarks as keywords even over the objection of the trademark owner. Google later even introduced a trademark-specific keyword tool that suggested relevant trademarks for Google's advertising clients to bid on as keywords. Google, however, continued to block the use of trademarks in the actual advertisement text at the request of a trademark owner. At that time, Google's internal studies suggested the unrestricted use of trademarks in the text of an advertisement might confuse Internet users.\nFinally, in 2009, Google changed its policy to permit the limited use of trademarks in advertising text in four situations: (1) the sponsor is a reseller of a genuine trademarked product; (2) the sponsor makes or sells component parts for a trademarked product; (3) the sponsor offers compatible parts or goods for use with the trademarked product; or (4) the sponsor provides information about or reviews *152 a trademarked product. Google's policy shift came after it developed the technology to automatically check the linked websites to determine if the sponsor's use of the trademark in the ad text was legitimate.[3]\nRosetta Stone contends that Google's policies concerning the use of trademarks as keywords and in ad text created not only a likelihood of confusion but also actual confusion as well, misleading Internet users into purchasing counterfeit ROSETTA STONE software. Moreover, Rosetta Stone alleges that it has been plagued with counterfeiters since Google announced its policy shift in 2009. According to Rosetta Stone, between September 3, 2009, and March 1, 2010, it was forced to report 190 instances to Google in which one of Google's sponsored links was marketing counterfeit ROSETTA STONE products.\nRosetta Stone filed this action against Google, asserting several claims: direct trademark infringement under the Lanham Act, see 15 U.S.C. § 1114(1)(a); contributory trademark infringement; (3) vicarious trademark infringement; (4) trademark dilution, see 15 U.S.C. § 1125(c)(1); and (5) unjust enrichment. Google filed a motion for summary judgment as to all claims except unjust enrichment. As to that claim, Google moved to dismiss. The district court granted Google's motion for summary judgment on all claims and granted the motion to dismiss the unjust enrichment claim. The district court denied Rosetta Stone's cross-motion for partial summary judgment.\n\nII. Direct Infringement\nThe district court entered summary judgment against Rosetta Stone as to its direct trademark infringement claim, concluding (A) that there is not a genuine issue of fact as to whether Google's use of ROSETTA STONE created a likelihood of confusion; and (B) that the \"functionality doctrine\" shielded Google from liability in any event. We conclude that neither ground can sustain the summary judgment order as to this claim. Accordingly, we vacate the district court's order as it pertains to the direct infringement claim and remand for further proceedings.\n\nA. Likelihood of Confusion\nTo establish trademark infringement under the Lanham Act, a plaintiff must prove: (1) that it owns a valid mark; (2) that the defendant used the mark \"in commerce\" and without plaintiff's authorization; (3) that the defendant used the mark (or an imitation of it) \"in connection with the sale, offering for sale, distribution, or advertising\" of goods or services; and (4) that the defendant's use of the mark is likely to confuse consumers. 15 U.S.C. § 1114(a); see Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 259 (4th Cir.2007); People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359, 364 (4th Cir. 2001).\nAccording to the district court, Google did not dispute that Rosetta Stone was able to surmount the summary judgment barrier on all of the infringement elements except the likelihood of confusion element. See Rosetta Stone, 730 F.Supp.2d at 540-41. On appeal, Google does not take issue with this statement.[4] Thus, we assume for *153 purposes of this appeal that Google's policy permitting advertisers to use Rosetta Stone's marks as keywords in the AdWords program and to use Rosetta Stone's marks in the text of advertisements constituted an unauthorized use \"in commerce\" and \"in connection with the sale, offering for sale, distribution, or advertising of any goods or services.\" 15 U.S.C. § 1114(1)(a). The only question for us on Rosetta Stone's direct trademark infringement claim is whether there is sufficient evidence for a finder of fact to conclude that Google's \"use\" of the mark in its AdWords program is \"likely to produce confusion in the minds of consumers about the origin of the goods or services in question.\" CareFirst of Md., Inc. v. First Care, P.C., 434 F.3d 263, 267 (4th Cir.2006) (internal quotation marks omitted).\nThis court has articulated at least nine factors that generally are relevant to the \"likelihood of confusion\" inquiry:\n(1) the strength or distinctiveness of the plaintiff's mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by the markholders; (6) the defendant's intent; (7) actual confusion; (8) the quality of the defendant's product; and (9) the sophistication of the consuming public.\nGeorge &amp; Co., LLC v. Imagination Entm't Ltd., 575 F.3d 383, 393 (4th Cir.2009). Although summary judgment on the likelihood of confusion issue is certainly permissible in appropriate cases, we have noted this is \"an inherently factual issue that depends on the facts and circumstances in each case.\" Lone Star Steakhouse &amp; Saloon, Inc. v. Alpha of Va., Inc., 43 F.3d 922, 933 (4th Cir.1995) (internal quotation marks omitted).\nThe district court indicated that \"only three of the nine confusion factors are in dispute: (1) defendant's intent; (2) actual confusion; and (3) the consuming public's sophistication.\" Rosetta Stone, 730 F.Supp.2d at 541. Weighing both Rosetta Stone's evidence and Google's rebuttal evidence, the district court concluded that all three \"disputed\" factors favored Google. The district court then stated that it had \"[b]alanc[ed] all of the disputed likelihood of confusion factors, ... [and] conclude[d] that Google's use of the Rosetta Stone Marks d[id] not amount to direct trademark infringement.\" Id. at 545. On appeal, Rosetta Stone argues that the district court failed to consider the effect of the other \"undisputed\" confusion factors, suggesting that all of these factors favor Rosetta Stone. Rosetta Stone also contends that there was sufficient evidence to create a genuine issue of fact as to whether the three \"disputed\" confusion factors favored Google or Rosetta Stone. We address these arguments in turn.\n\n1. Failure to Address All Factors\nRosetta Stone contends that the district court's failure to consider all nine of the traditional likelihood-of-confusion *154 factors was reversible error. We cannot agree. This judicially created list of factors is not intended to be exhaustive or mandatory. See Pizzeria Uno Corp. v. Temple, 747 F.2d 1522, 1527 (4th Cir.1984) (setting forth factors one through seven); see also Sara Lee Corp. v. Kayser-Roth Corp., 81 F.3d 455, 463-64 (4th Cir.1996) (identifying factors eight and nine). These \"factors are not always weighted equally, and not all factors are relevant in every case.\" Louis Vuitton, 507 F.3d at 259-60. In fact, \"there is no need for each factor to support [the plaintiff's] position on the likelihood of confusion issue.\" Synergistic Int'l, LLC v. Korman, 470 F.3d 162, 171 (4th Cir.2006). Rather, the confusion \"factors are only a guide—a catalog of various considerations that may be relevant in determining the ultimate statutory question of likelihood of confusion.\" Anheuser-Busch, Inc. v. L &amp; L Wings, Inc., 962 F.2d 316, 320 (4th Cir.1992). Accordingly, there is no hard and fast rule that obligates the district court to discuss each non-mandatory factor.\nThis is especially true when the offending use of the plaintiff's trademark is referential or nominative in nature. See Century 21 Real Estate Corp. v. Lendingtree, Inc., 425 F.3d 211, 217 (3d Cir.2005). Unlike the typical infringement fact-pattern wherein the defendant \"passe[s] off another's mark as its own\" and \"confus[es] the public as to precisely whose goods are being sold,\" id., a nominative use is one in which the defendant uses the plaintiff's trademark to identify the plaintiff's own goods, see Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 102 (2d Cir.2010), and \"makes it clear to consumers that the plaintiff, not the defendant, is the source of the trademarked product or service,\" Century 21, 425 F.3d at 220; see Tiffany, 600 F.3d at 102 (explaining that a \"nominative fair use\" does not create \"confusion about the source of [the] defendant's product\" (internal quotation marks omitted)). An example of this type of use would be where an automobile repair shop specializing in foreign vehicles runs an advertisement using the trademarked names of various makes and models to highlight the kind of cars it repairs. See New Kids On The Block v. News Am. Publ'g, Inc., 971 F.2d 302, 306-07 (9th Cir.1992).\nIn the context of a referential or nominative type of use, the application of the traditional multi-factor test is difficult because often many of the factors \"are either unworkable or not suited or helpful as indicators of confusion in this context.\" Century 21, 425 F.3d at 224; see Playboy Enters., Inc. v. Welles, 279 F.3d 796, 801 (9th Cir.2002). For example, the first two factors in our list—the similarity of the marks and the strength of the plaintiff's mark—are clearly of limited value for assessing the kind of use at issue here. Consideration of the similarity of the marks will always suggest the presence of consumer confusion—the mark used will always be identical \"because, by definition, nominative use involves the use of another's trademark in order to describe the trademark owner's own product.\" Century 21, 425 F.3d at 224. The similarity factor does not account for context and \"lead[s] to the incorrect conclusion that virtually all nominative uses are confusing.\" Playboy Enters., 279 F.3d at 801.\nThe strength of the plaintiff's mark is also of limited probative value as to the confusion created by a nominative use. When a defendant creates an association between its goods or services and plaintiff's mark, the strength of the mark is relevant since encroachment upon a strong mark is more likely to cause confusion. See CareFirst of Md., 434 F.3d at 270 (\"A strong trademark is one that is rarely used by parties other than the owner of the *155 trademark, while a weak trademark is one that is often used by other parties.\" (internal quotation marks omitted)). Of course, in the nominative use context, the defendant is not passing off its products under the plaintiff's mark but rather is using plaintiff's mark to refer to plaintiff's own products. The strength of the mark is often not informative as to confusion in this context. See Century 21, 425 F.3d at 225.\nThe district court also did not address the two factors relating to the trademarked goods—the similarity of the parties' goods and services and the quality of the defendant's goods. Because Google offers no products or services under Rosetta Stone's mark, these factors are irrelevant in this context.\nThe final two factors not addressed by the district court—the similarity of facilities and the similarity of advertising—are likewise of no relevance here. When considering the similarity of facilities, courts are trying to determine if confusion is likely based on \"how and to whom the respective goods of the parties are sold,\" and the key question is whether \"both products [are] sold in the same `channels of trade.'\" 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 24:51 [hereinafter McCarthy on Trademarks]; see Sara Lee Corp., 81 F.3d at 466 (similarity of distribution channels favored confusion where the parties' products were sold, \"often side-by-side,\" in the same mass merchandising outlets). As Google distributes no respective product via the Internet or other outlets, this factor does not aid the likelihood-of-confusion analysis in this case.\nWe hasten to add that we are not adopting a position about the viability of the nominative fair-use doctrine as a defense to trademark infringement or whether this doctrine should formally alter our likelihood-of-confusion test in some way. That question has not been presented here and we leave it for another day. We have merely attempted to highlight the problems inherent in the robotic application of each and every factor in a case involving a referential, nontrademark use. Accordingly, the district court did not commit reversible error in failing to address every factor. In the future, however, a district court opting not to address a given factor or group of factors should provide at least a brief explanation of its reasons.\n\n2. Remaining \"Disputed\" Factors: Genuine Issues of Fact\nNevertheless, we agree that summary judgment should not have been granted. As explained in the discussion that follows, the district court did not properly apply the summary judgment standard of review but instead viewed the evidence much as it would during a bench trial.\n\n(a) Intent\nThe district court concluded that no reasonable trier of fact could find that Google intended to create confusion by permitting the use of ROSETTA STONE in the text of sponsored links or as keywords in Google's AdWords program. The court found it especially significant that \"there is no evidence that Google is attempting to pass off its goods or services as Rosetta Stone's.\" Id. at 541.\nThe record shows that prior to 2004, Google did not allow the use of trademarks as keyword search triggers for unauthorized advertisers or in the body or title of the text of an advertisement. In 2004, Google loosened its restrictions on the use of trademarks as keywords to \"[p]rovide users with more choice and greater access to relevant information.\" J.A. 4264. The underlying reason was largely financial, as *156 Google's research showed that \"[a]bout 7% [of its] total revenue [was] driven by [trademark]ed keywords.\" J.A. 4265. With the policy shift, Google understood that \"[t]here [would be] a slight increase in risk that we and our partners will be the subject of lawsuits from unhappy trademark owners.\" J.A. 4271. At that time, however, Google \"continue[d] to prevent advertisers from using ... trademarks in their ad text or ad titles unless the advertiser is authorized to do so by the trademark owner.\" J.A. 4263. Indeed, internal studies performed by Google at this time suggested that there was significant source confusion among Internet searchers when trademarks were included in the title or body of the advertisements.\nNonetheless, Google shifted its policy again in 2009, telling its customers and potential customers that \"we are adjusting our trademark policy ... to allow some ads to use trademarks in the ad text. Under certain criteria, you can use trademark terms in your ad text ... even if you don't own that trademark or have explicit approval from the trademark owner to use it.\" J.A. 4383. Google expected a substantial boost in revenue from the policy change as well as an uptick in litigation from trademark owners. The record does not contain further Google studies or any other evidence suggesting that in 2009 source confusion relating to the use of trademarks in the body of an advertisement was any less significant than in 2004. Viewing the evidence and all reasonable inferences in a light most favorable to Rosetta Stone, as we are required to do on a motion for summary judgment, we conclude that a reasonable trier of fact could find that Google intended to cause confusion in that it acted with the knowledge that confusion was very likely to result from its use of the marks.\n\n(b) Actual Confusion\n\n(i) Actual Purchaser Confusion\nRosetta Stone presented both survey and anecdotal evidence of actual confusion in connection with Google's use of trademarks in its AdWords program. See George &amp; Co., 575 F.3d at 398 (\"Actual confusion can be demonstrated by both anecdotal and survey evidence.\"). Both types of evidence are relevant, and neither category is necessarily required to prove actual confusion. See Tools USA &amp; Equip. Co. v. Champ Frame Straightening Equip., Inc., 87 F.3d 654, 661 (4th Cir. 1996).\nFirst, the record includes the deposition testimony of five consumers who attempted to buy a ROSETTA STONE software package via the Internet in 2009 after Google began permitting use of ROSETTA STONE and other trademarks in the text of the sponsored links. Each of these would-be customers purchased bogus ROSETTA STONE software from a sponsored link that they mistakenly believed to be either affiliated with Rosetta Stone or authorized by Rosetta Stone to resell or distribute genuine software. In each instance, the customer received fake software that would not load onto his or her computer or was so faulty after loading as to be altogether useless. Each witness testified that he or she called Rosetta Stone directly, believing that Rosetta Stone would assist because it was a defective genuine product or that Rosetta Stone had empowered the reseller to offer its products. Typical of this set of witnesses was Steve Dubow, a college-educated founder and owner of a software company. Mr. Dubow testified that he wanted to learn Spanish and, after conducting his own research on the Internet, concluded that the ROSETTA STONE brand was best for him. Mr. Dubow then described how he arrived at the decision to purchase *157 from \"bossdisk.com,\" one of the sponsored links that was selling counterfeit ROSETTA STONE products:\n... At the time that you entered the terms ... \"Rosetta Stone\" in the Google search engine ... in October 2009, do you recall whether any advertisements appeared on the first page?\n... [W]hat do you mean by advertisements?\nQ. Links that appear to you to be companies selling goods in response to your query.\nA. Yes.... There were quite a few under that description, yes.\nQ. What do you recall seeing on the search page results when you entered Rosetta Stone in the Google search engine?\nA. I saw a number of sites ... advertising Rosetta Stone software for a number of different discounted prices. What attracted us to this particular site was that they presumed to be a Rosetta Stone reseller reselling OEM or original equipment manufactured product.\n. . .\nQ. What do you mean by reseller?\nA. That they were a ... sanctioned reseller of Rosetta Stone product.\nJ.A. 4614c-4615a. Once Mr. Dubow received the shipment from bossdisk.com and determined that the software appeared to need a key code to become fully operational, he called Rosetta Stone because he \"thought that since this company was a representative perhaps they just forgot to put the welcome kit in this package and they would have a key.\" J.A. 4620c.\nThe district court dismissed this anecdotal customer testimony as evidence of actual confusion for several reasons. We agree with Rosetta Stone that none of these reasons provide a proper basis for rejecting this testimony completely.\nFirst, the district court concluded that the witnesses indicated they knew they were not purchasing directly from Rosetta Stone's site and, therefore, \"none of the Rosetta Stone witnesses were confused about the source of their purchase but only as to whether what they purchased was genuine or counterfeit.\" Rosetta Stone, 730 F.Supp.2d at 544. More than just source confusion is at issue in an infringement claim since \"[t]he unauthorized use of a trademark infringes the trademark holder's rights if it is likely to confuse an ordinary consumer as to the source or sponsorship of the goods.\" Doughney, 263 F.3d at 366 (emphasis added) (internal quotation marks omitted). \"The confusion that is remedied by trademark and unfair competition law is confusion not only as to source, but also as to affiliation, connection or sponsorship.\" 4 McCarthy on Trademarks § 23:8.\nThe district court also reasoned that none of the five witnesses were confused by a sponsored link \"that conformed to Google's policies—i.e., used the Rosetta Stone Marks in connection with advertising genuine goods.\" Rosetta Stone, 730 F.Supp.2d at 543. This is no basis, however, for rejecting this testimony. Whether the sponsored link conforms to Google's policy is not an issue that bears upon whether the consuming public, which is not privy to these policies, is confused by the actual use of the trademarks in sponsored links. What matters is whether \"the defendant's actual practice is likely to produce confusion in the minds of consumers about the origin of the goods or services in question.\" CareFirst of Md., 434 F.3d at 267 (emphasis added) (internal quotation marks omitted).\nFinally, the district court dismissed the anecdotal evidence as de minimis given that there were only five instances of actual *158 confusion out of more than \"100,000 impressions over six years.\" Rosetta Stone, 730 F.Supp.2d at 543. And, indeed, \"[e]vidence of only a small number of instances of actual confusion may be dismissed as de minimis\" where the number of opportunities for confusion is great. George &amp; Co., 575 F.3d at 398; see 4 McCarthy § 23:14 (\"If there is a very large volume of contacts or transactions which could give rise to confusion and there is only a handful of instances of actual confusion, the evidence of actual confusion may receive relatively little weight.\"). Rosetta Stone presented the deposition testimony of five individuals who had experienced actual confusion—the maximum number of \"actual confusion\" depositions permitted by the district court in this case. The record, however, contains other evidence of actual confusion. Rosetta Stone presented evidence that from April 1, 2009, through December 9, 2009, Rosetta Stone's customer care center received 123 complaints \"from individuals who ha[d] purchased pirated/counterfeit software believing the software to be genuine Rosetta Stone product,\" J.A. 5427, and Rosetta Stone received 139 additional complaints from December 9, 2009, through March 8, 2010. Although this evidence does not indicate whether each customer logging a complaint made the purchase via a sponsored link, it is reasonable, for purposes of summary judgment, to infer that a great number of these individuals were confused by the apparent relationship between Rosetta Stone and the sponsored link given that Google began allowing trademarks to be displayed in the ad text in 2009 and in light of the evidence showing a substantial \"proliferation of sponsored links to pirate/counterfeit sites.\" Id.\n\n(ii) Google's In-House Studies and Google's Corporate Designees\nThe record also includes various in-house studies conducted by Google \"to analyze user confusion (if any) associated with ads using [trademark] terms.\" J.A. 4362. One of the studies showed that \"the likelihood of confusion remains high\" when trademark terms are used in the title or body of a sponsored link appearing on a search results page. J.A. 4366. The study recommended \"that the only effective [trademark] policy ... is: (1) [to] [a]llow [trademark] usage for keywords; (2) [but] not allow [trademark] usage in ad text—title or body.\" Id. And, in fact, Google's official policy change in 2004 that continued to prohibit trademark usage in ad text was based, in part, on these internal studies. The district court concluded these studies were not evidence of actual confusion because the studies did not test consumer impressions of the ROSETTA STONE mark specifically, but of a broad cross-section of 16 different brand names of varying strengths. We conclude that these studies, one of which reflected that \"94% of users were confused at least once,\" are probative as to actual confusion in connection with Google's use of trademarks; indeed, Google determined that there was \"[n]o difference between strong and weak trademarks\" with respect to confusion. J.A. 4375.\nAdditionally, when testifying on behalf of Google as its Rule 30(b)(6) designees, two of Google's in-house trademark attorneys were shown a Google search results page for the keyword phrase \"Rosetta Stone,\" and they were unable to determine without more research which sponsored links were authorized resellers of ROSETTA STONE products. The district court rejected this evidence as proof of actual confusion because the testimony appeared to the district court to \"reflect a mere uncertainty about the source of a product rather than actual confusion.\" Rosetta Stone, 730 F.Supp.2d at 544. \"[U]ncertain[ty *159 about] the origin\" of a product, however, is quintessential actual confusion evidence. Sara Lee Corp., 81 F.3d at 466. The district court should have accepted it as evidence of actual confusion for summary judgment purposes; whether it is entitled to enough weight to carry the day on the ultimate issue is a matter for trial.\n\n(iii) Dr. Kent Van Liere's Report\nRosetta Stone also presented a consumer confusion survey report from Dr. Kent Van Liere. Dr. Van Liere is an expert in market analysis and consumer behavior, with \"experience conducting and using focus groups and surveys to measure consumer opinions ... regarding products and services,\" J.A. 5448, and \"design[ing] and review[ing] studies on the application of sampling and survey research methods in litigation for a variety of matters including trademark/trade dress infringement,\" J.A. 5449. Dr. Van Liere \"tested for actual confusion regarding the appearance of sponsored links when consumers conducted a Google search for `Rosetta Stone.'\" J.A. 5449. Based on this study, Dr. Van Liere concluded that\na significant portion of consumers in the relevant population are likely to be confused as to the origin, sponsorship or approval of the \"sponsored links\" that appear on the search results page after a consumer has conducted a Google search using a Rosetta Stone trademark as a keyword and/or are likely to be confused as to the affiliation, endorsement, or association of the websites linked to those \"sponsored links\" with Rosetta Stone.\nJ.A. 5450. Specifically, Dr. Van Liere's survey \"yield[ed] a net confusion rate of 17 percent\"—that is, \"17 percent of consumers demonstrate actual confusion.\" J.A. 5459. This result is clear evidence of actual confusion for purposes of summary judgment. Cf. Sara Lee Corp., 81 F.3d at 467 n. 15 (suggesting that survey evidence \"clearly favors the defendant when it demonstrates a level of confusion much below ten percent\" but noting caselaw that \"hold[s] that survey evidence indicating ten to twelve percent confusion was sufficient to demonstrate actual confusion\").\nThe district court, however, concluded that the survey report was \"unreliable evidence of actual confusion because the result contained a measure of whether respondents thought Google `endorsed' a Sponsored Link, a non-issue.\" Rosetta Stone, 730 F.Supp.2d at 544. Thus, the court did not consider this survey evidence to be viable proof of actual confusion for much the same reason it rejected the deposition testimony of the five individuals who purchased counterfeit software. As we previously stated, however, trademark infringement creates a likelihood of \"confusion not only as to source, but also as to affiliation, connection or sponsorship.\" 4 McCarthy on Trademarks § 23:8. Accordingly, this evidence should have been added to the other evidence of actual confusion to be considered in the light most favorable to Rosetta Stone.\n\n(c) Sophistication of the Consuming Public\nThe district court concluded that the consumer sophistication factor also favored a finding that Google's use of the marks is not likely to create confusion. Noting the substantial cost of Rosetta Stone's products (\"approximately $259 for a single-level package and $579 for a three-level bundle\"), as well as the time commitment required to learn a foreign language, the district court concluded that the relevant market of potential purchasers \"is comprised of well-educated consumers\" who \"are more likely to spend time searching and learning about Rosetta Stone's products.\" *160 Rosetta Stone Ltd., 730 F.Supp.2d at 545. From there, the court inferred consumer sophistication—consumers willing to pay Rosetta Stone's prices and, presumably, make the required time commitment \"would tend to demonstrate that they are able to distinguish between the Sponsored Links and organic results displayed on Google's search results page.\" Id.\nThe district court drew this inference relying on Star Industries, Inc. v. Bacardi &amp; Co. Ltd., 412 F.3d 373 (2d Cir.2005), in which the Second Circuit noted that a court may \"reach a conclusion about consumer sophistication based solely on the nature of the product or its price.\" Id. at 390. This is correct if, as in Star Industries, the court is making findings of fact on the likelihood of confusion issue following a bench trial. See id. at 379. In the more relevant context of a summary judgment motion, however, that is not the case, as \"[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge ... ruling on a motion for summary judgment.\" Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).\nWe conclude that there is sufficient evidence in the record to create a question of fact as to consumer sophistication that cannot be resolved on summary judgment. The record includes deposition testimony from Rosetta Stone customers who purchased counterfeit ROSETTA STONE software from sponsored links that they believed to be either affiliated with or authorized by Rosetta Stone to sell genuine software. The evidence also includes an internal Google study reflecting that even well-educated, seasoned Internet consumers are confused by the nature of Google's sponsored links and are sometimes even unaware that sponsored links are, in actuality, advertisements. At the summary judgment stage, we cannot say on this record that the consumer sophistication factor favors Google as a matter of law. There is enough evidence, if viewed in a light most favorable to Rosetta Stone, to find that this factor suggests a likelihood of confusion.\nIn sum, we conclude that there is sufficient evidence in the record to create a question of fact on each of the \"disputed\" factors—intent, actual confusion, and consumer sophistication—to preclude summary judgment. Because the district court's likelihood-of-confusion analysis was limited only to these \"disputed\" factors, the likelihood-of-confusion issue cannot be resolved on summary judgment, and we vacate the district court's order in this regard.[5]\n\n\n*161 B. Functionality\nAs an alternate to its conclusion that Rosetta Stone failed to forecast sufficient evidence to establish a likelihood of confusion, the district court held that the use of the ROSETTA STONE marks as keywords was protected by the \"functionality doctrine\" and, as such, was non-infringing as a matter of law. See Rosetta Stone, 730 F.Supp.2d at 545. Because the functionality doctrine does not apply in these circumstances, however, we conclude that the district court erred in awarding summary judgment to Google on this basis.\nThe functionality doctrine developed as a common law rule prohibiting trade dress or trademark rights in the functional features of a product or its packaging. See Wilhelm Pudenz, GmbH v. Littlefuse, Inc., 177 F.3d 1204, 1207 (11th Cir.1999); 1 McCarthy § 7:63. The purpose of the doctrine is to preserve the distinction between the realms of trademark law and patent law:\nThe functionality doctrine prevents trademark law, which seeks to promote competition by protecting a firm's reputation, from instead inhibiting legitimate competition by allowing a producer to control a useful product feature. It is the province of patent law, not trademark law, to encourage invention by granting inventors a monopoly over new product designs or functions for a limited time, after which competitors are free to use the innovation. If a product's functional features could be used as trademarks, however, a monopoly over such features could be obtained without regard to whether they qualify as patents and could be extended forever (because trademarks may be renewed in perpetuity).\nQualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164-65, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995) (internal citation omitted); see Georgia-Pacific Consumer Prods., LP v. Kimberly-Clark Corp., 647 F.3d 723, 727 (7th Cir.2011) (explaining that \"patent law alone protects useful designs from mimicry; the functionality doctrine polices the division of responsibilities between patent and trademark law by invalidating marks on useful designs\" (internal quotation marks omitted)).\nIn 1998, Congress adopted the functionality doctrine by explicitly prohibiting trademark registration or protection under the Lanham Act for a functional product feature, see 15 U.S.C. § 1052(e)(5) (prohibiting registration of a mark which \"comprises any matter that, as a whole, is functional\"), and by making functionality a statutory defense to an incontestably registered mark, see 15 U.S.C. § 1115(b)(8); see generally 1 McCarthy § 7:63. Although the Lanham Act does not define the term \"functional,\" see 15 U.S.C. § 1127, the Supreme Court has explained that \"a product feature is functional if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.\" Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 n. 10, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982); see TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 32-33, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001). Under Inwood's traditional rule, a product feature is functional if it is \"the reason the device works,\" Board of Supervisors v. Smack Apparel Co., 550 F.3d 465, 486 (5th Cir. 2008) (internal quotation marks omitted), or it \"constitute[s] the actual benefit that the customer wishes to purchase, as distinguished from an assurance that a particular entity made, sponsored, or endorsed a product,\" Clamp Mfg. Co. v. Enco Mfg. *162 Co., 870 F.2d 512, 516 (9th Cir.1989) (internal quotation marks omitted); see I.P. Lund Trading v. Kohler Co., 163 F.3d 27, 37 n. 5 (1st Cir.1998). (\"[F]unctional features or designs should be defined as those that are driven by practical, engineering-type considerations such as making the product work more efficiently, with fewer parts and longer life, or with less danger to operators, or be shaped so as to reduce expenses of delivery or damage in shipping.\" (internal quotation marks omitted)).[6]\nThe district court did not conclude, nor could it, that Rosetta Stone's marks were functional product features or that Rosetta Stone's own use of this phrase was somehow functional. Instead, the district court concluded that trademarked keywords—be it ROSETTA STONE or any other mark—are \"functional\" when entered into Google's AdWords program:\nThe keywords . . . have an essential indexing function because they enable Google to readily identify in its databases relevant information in response to a web user's query . . . [T]he keywords also serve an advertising function that benefits consumers who expend the time and energy to locate particular information, goods, or services, and to compare prices.\nRosetta Stone, 730 F.Supp.2d at 546.\nThe functionality doctrine simply does not apply in these circumstances. The functionality analysis below was focused on whether Rosetta Stone's mark made Google's product more useful, neglecting to consider whether the mark was functional as Rosetta Stone used it. Rosetta Stone uses its registered mark as a classic source identifier in connection with its language learning products. Clearly, there is nothing functional about Rosetta Stone's use of its own mark; use of the words \"Rosetta Stone\" is not essential for the functioning of its language-learning products, which would operate no differently if Rosetta Stone had branded its product \"SPHINX\" instead of ROSETTA STONE. See Playboy Enters., Inc. v. Netscape Commc'ns Corp., 354 F.3d 1020, 1030-31 (9th Cir. 2004) (\"Nothing about the marks used to identify PEI's products is a functional part of the design of those products\" since \"PEI could easily have called its magazine and its models entirely different things without losing any of their intended function.\"). Once it is determined that the product feature—the word mark ROSETTA STONE in this case—is not functional, then the functionality doctrine has no application, and it is irrelevant whether Google's computer program functions better by use of Rosetta Stone's nonfunctional mark. See id. at 1031 (concluding that \"[t]he fact that the [word] marks make defendants' computer program more functional is irrelevant\" where plaintiff used its word marks merely to identify its products).\nAs the case progresses on remand, Google may well be able to establish that its use of Rosetta Stone's marks in its Ad-Words program is not an infringing use of such marks; however, Google will not be able to do so based on the functionality *163 doctrine. The doctrine does not apply here, and we reject it as a possible affirmative defense for Google.\n\nIII. Contributory Infringement\nRosetta Stone next challenges the district court's grant of summary judgment in favor of Google on the contributory trademark infringement claim. Contributory infringement is a \"judicially created doctrine\" that \"derive[s] from the common law of torts,\" Von Drehle, 618 F.3d at 449, under which liability may be imposed upon those who facilitate or encourage infringement, see 4 McCarthy on Trademarks § 25:17. The Supreme Court explained in Inwood Laboratories that\nif a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorily responsible for any harm done as a result of the deceit.\n456 U.S. at 854, 102 S.Ct. 2182. It is not enough to have general knowledge that some percentage of the purchasers of a product or service is using it to engage in infringing activities; rather, the defendant must supply its product or service to \"identified individuals\" that it knows or has reason to know are engaging in trademark infringement. See Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 439 n. 19, 104 S.Ct. 774, 78 L.Ed.2d 574 (1984) (contributory trademark infringement requires a showing that the defendant \"intentionally induc[ed] its customers to make infringing uses\" of the marks or \"suppl[ied] its products to identified individuals known by it to be engaging in continuing infringement\" (internal quotation marks omitted)). Finally, for there to be liability for contributory trademark infringement, the plaintiff must establish underlying direct infringement. See Von Drehle, 618 F.3d at 451. In other words, there must necessarily have been an infringing use of the plaintiff's mark that was encouraged or facilitated by the defendant.\nThe district court recognized that Rosetta Stone had come forward with evidence relevant to its contributory infringement claim. The most significant evidence in this regard reflected Google's purported allowance of known infringers and counterfeiters to bid on the Rosetta Stone marks as keywords:\n[The evidence included] a spreadsheet that Google received which reflects the dates when Rosetta Stone advised Google that a Sponsored Link was fraudulent, the domain names associated with each such Sponsored Link, the text of each Sponsored Link, and the date and substance of Google's response. As documented, from September 3, 2009 through March 1, 2010, Rosetta Stone notified Google of approximately 200 instances of Sponsored Links advertising counterfeit Rosetta Stone products. Rosetta Stone contends that even after being notified of these websites, Google continued to allow Sponsored Links for other websites by these same advertisers to use the Rosetta Stone Marks as keyword triggers and in the text of their Sponsored Link advertisements. For example, between October 2009 to December 2009, 110 different Sponsored Links purportedly selling Rosetta Stone products used \"Rosetta Stone\" as a keyword trigger, and most of the Links included \"Rosetta Stone\" or \"Rosettastone\" in their display. Registered to the same individual, these 110 Links were displayed on 356,675 different search-results pages.\n*164 Rosetta Stone, 730 F.Supp.2d at 547 (internal citations omitted).\nNevertheless, the district court indicated it was \"unpersuaded\" by this evidence. Id. at 547. The district court's conclusion was based largely on Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir.2010), in which the Second Circuit rejected a contributory trademark infringement claim against an Internet auction site, eBay, by a trademark owner, Tiffany, whose mark was being used by jewelry counterfeiters on eBay's site. The record at trial in that case contained evidence \"demonstrat[ing] that eBay had generalized notice that some portion of the Tiffany goods sold on its website might be counterfeit,\" id. at 106, having received \"thousands of [Notice of Claimed Infringement Forms] [Tiffany] filed with eBay alleging . . . that certain listings were counterfeit,\" id. The Second Circuit concluded that such evidence was insufficient to satisfy Inwood's \"knows or has reason to know\" requirement and that Tiffany \"would have to show that eBay knew or had reason to know of specific instances of actual infringement beyond those that it addressed upon learning of them.\" Id. at 107 (emphasis added; internal quotation marks omitted). The Second Circuit noted, however, that had there been evidence of willful blindness, that would have satisfied the Inwood standard. See id. at 109. \"[C]ontributory liability may arise where a defendant is (as was eBay here) made aware that there was infringement on its site but (unlike eBay here) ignored that fact.\" Id. at 110 n. 15.[7]\nApplying Tiffany, the district court concluded that Rosetta Stone failed to establish with the requisite specificity that Google knew or should have known of the infringing activity:\n\nComparing the evidence of knowledge attributed to eBay to the roughly 200 notices Google received of Sponsored Links advertising counterfeit Rosetta Stone products on its search results pages, the Court necessarily holds that Rosetta Stone has not met the burden of showing that summary judgment is proper as to its contributory trademark infringement claim.\nSee Rosetta Stone, 730 F.Supp.2d at 549 (emphasis added). The court also noted that Google did not turn a blind eye to Rosetta Stone's complaints about counterfeiters, explaining that \"[t]here is little Google can do beyond expressly prohibiting advertisements for counterfeit goods, taking down those advertisements when it learns of their existence, and creating a team dedicated to fighting advertisements for counterfeit goods.\" Id. at 548.\nOn appeal, Rosetta Stone argues that the district court misapplied the standard of review and incorrectly awarded summary judgment to Google where the evidence was sufficient to permit a trier of fact to find contributory infringement. We agree. In granting summary judgment to Google because \"Rosetta Stone has not met the burden of showing that summary judgment is proper as to its contributory trademark infringement claim,\" the district court turned the summary judgment standard on its head. While it may very well be that Rosetta Stone was not entitled to summary judgment, that issue is not before us. The only question in this appeal is whether, viewing the evidence and drawing all reasonable *165 inferences from that evidence in a light most favorable to Rosetta Stone, a reasonable trier of fact could find in favor of Rosetta Stone, the nonmoving party. See Von Drehle, 618 F.3d at 445. Of course, the Tiffany court did not view the evidence through the lense of summary judgment; rather, Tiffany involved an appeal of judgment rendered after a lengthy bench trial. Because of its procedural posture, the district court in Tiffany appropriately weighed the evidence sitting as a trier of fact. Accordingly, Tiffany is of limited application in these circumstances, and the district court's heavy reliance on Tiffany was misplaced. We conclude that the evidence recited by the district court is sufficient to establish a question of fact as to whether Google continued to supply its services to known infringers. Accordingly, we vacate the district court's order to the extent it grants summary judgment in favor of Google on Rosetta Stone's contributory infringement claim.\n\nIV. Vicarious Infringement\nRosetta Stone next challenges the district court's rejection of its vicarious liability theory. \"Vicarious liability\" in the trademark context is essentially the same as in the tort context: the plaintiff seeks to impose liability based on the defendant's relationship with a third party tortfeasor. Thus, liability for vicarious trademark infringement requires \"a finding that the defendant and the infringer have an apparent or actual partnership, have authority to bind one another in transactions with third parties or exercise joint ownership or control over the infringing product.\" Hard Rock Cafe Licensing Corp. v. Concession Servs., Inc., 955 F.2d 1143, 1150 (7th Cir.1992).\nRosetta Stone argues that the evidence proffered was sufficient to create a question of fact regarding whether Google jointly controls the appearance of the ads or sponsored links on Google's search-engine results page. This is not evidence, however, that Google acts jointly with any of the advertisers to control the counterfeit ROSETTA STONE products. Accordingly, we affirm the district court's grant of summary judgment in favor of Google on Rosetta Stone's vicarious liability claim.\n\nV. Unjust Enrichment\nRosetta Stone contends that the district court improperly dismissed its claim for unjust enrichment under Virginia law. The district court dismissed this claim on two grounds, concluding that Rosetta Stone failed to allege facts sufficient to state a claim of unjust enrichment, see Rosetta Stone, 732 F.Supp.2d at 631-32, and that the Communications Decency Act (CDA), see 47 U.S.C. § 230(c)(1), bars the unjust enrichment claim, see Rosetta Stone, 732 F.Supp.2d at 633. We conclude that Rosetta Stone failed to sufficiently plead the elements of its unjust enrichment claim and therefore affirm, albeit on reasoning different than that of the district court.\nA cause of action for unjust enrichment in Virginia \"rests upon the doctrine that a man shall not be allowed to enrich himself unjustly at the expense of another.\" Kern v. Freed Co., 224 Va. 678, 299 S.E.2d 363, 365 (1983) (internal quotation marks omitted); see Nossen v. Hoy, 750 F.Supp. 740, 744 (E.D.Va.1990). \"To avoid unjust enrichment, equity will effect a `contract implied in law,'\" i.e., a quasi contract, \"requiring one who accepts and receives the services of another to make reasonable compensation for those services.\" Po River Water and Sewer Co. v. Indian Acres Club of Thornburg, Inc., 255 Va. 108, 114, 495 S.E.2d 478 (1998). A plaintiff asserting unjust enrichment must demonstrate the following three elements: *166 \"(1) he conferred a benefit on [the defendant]; (2) [the defendant] knew of the benefit and should reasonably have expected to repay [the plaintiff]; and (3) [the defendant] accepted or retained the benefit without paying for its value.\" Schmidt v. Household Finance Corp., 276 Va. 108, 661 S.E.2d 834, 838 (2008).\nThe district court concluded that Rosetta Stone failed to state a claim because it did not allege \"facts which imply that [Google] promised to pay the plaintiff for the benefit received\" or that there was \"an understanding by Google that it owed Rosetta Stone revenue earned for paid advertisements containing the Rosetta Stone Marks.\" Rosetta Stone, 732 F.Supp.2d at 631, 632. Failure to allege an implicit promise to pay, however, is not necessarily fatal to an implied contract theory. Virginia distinguishes between two types of implied contracts: contracts that are implied-in-fact and contracts that are implied-in-law. An implied-in-fact contract is an actual contract that was not reduced to writing, but the court infers the existence of the contract from the conduct of the parties. See Nossen, 750 F.Supp. at 744. To recover under a contract \"implied-in-fact,\" a plaintiff must allege \"facts to raise an implication that the defendant promised to pay the plaintiff for such benefit.\" Nedrich v. Jones, 245 Va. 465, 429 S.E.2d 201, 207 (1993) (internal quotation marks omitted &amp; emphasis added).\nBy contrast, the concept of an implied-in-law contract, or quasi contract, applies only when there is not an actual contract or meeting of the minds. See id. We understand Rosetta Stone's unjust enrichment claim to be an implied-in-law contract claim; thus, the failure to allege that Google implicitly promised to pay is not fatal.\nNonetheless, this court can affirm the dismissal of the complaint \"on any basis fairly supported by the record.\" Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir.2002). We conclude that Rosetta Stone failed to allege facts showing that it \"conferred a benefit\" on Google for which Google \"should reasonably have expected\" to repay. According to Rosetta Stone, the keyword trigger auctions constitute the unauthorized sale of the ROSETTA STONE marks. Rosetta Stone alleges that through the auctions it conferred a benefit \"involuntarily\" on Google, and that Google \"is knowingly using the goodwill established in [the] trademarks to derive. . . revenues.\" J.A. 197. Rosetta Stone, however, has not alleged facts supporting its general assertion that Google \"should reasonably have expected\" to pay for the use of marks in its keyword query process. Indeed, Rosetta Stone does not contend, and did not allege, that Google pays any other mark holder for the right to use a mark in its AdWords program. In our view, these allegations are insufficient to surmount even the minimal barrier presented by a motion to dismiss.[8]\n\n\n*167 VI. Trademark Dilution\nRosetta Stone next challenges the district court's summary judgment order as to its trademark dilution claim. \"Unlike traditional infringement law, the prohibitions against trademark dilution . . . are not motivated by an interest in protecting consumers.\" Moseley v. V. Secret Catalogue, Inc., 537 U.S. 418, 429, 123 S.Ct. 1115, 155 L.Ed.2d 1 (2003). Dilution is not concerned with confusion in the marketplace. Rather, dilution theory provides that \"if customers or prospective customers see the plaintiff's famous mark used by other persons in a non-confusing way to identify other sources for many different goods and services, then the ability of the famous mark to clearly identify and distinguish only one source might be `diluted' or weakened.\" 4 McCarthy § 24:67. Thus, trademark dilution is \"the whittling away of the established trademark's selling power and value through its unauthorized use by others.\" Tiffany, 600 F.3d at 111 (internal quotation marks and alteration omitted).\nUntil 1996, trademark dilution was based entirely upon state law because federal law did not recognize the dilution doctrine. The Federal Trademark Dilution Act (FTDA) was passed in 1996, see Pub.L. No. 104-98, 109 Stat. 985 (1996), and was amended substantially in 2006 with the passage of the Trademark Dilution Revision Act of 2006, see Pub.L. No. 109-312, § 2, 120 Stat. 1730 (2006). The FTDA currently provides:\n[T]he owner of a famous mark . . . shall be entitled to an injunction against another person who . . . commences use of a mark or trade name in commerce that is likely to cause dilution by blurring or dilution by tarnishment of the famous mark, regardless of the presence or absence of actual or likely confusion, of competition, or of actual economic injury.\n15 U.S.C. § 1125(c)(1) (emphasis added). The statute defines \"dilution by blurring\" as the \"association arising from the similarity between a mark or trade name and a famous mark that impairs the distinctiveness of the famous mark.\" 15 U.S.C. § 1125(c)(2)(B). \"[D]ilution by tarnishment\" is defined as the \"association arising from the similarity between a mark or trade name and a famous mark that harms the reputation of the famous mark.\" 15 U.S.C. § 1125(c)(2)(C). Thus, blurring under the federal statute involves the classic \"whittling away\" of the selling power and strength of the famous mark. Tarnishment, by contrast, creates consumer aversion to the famous brand—e.g., when the plaintiff's famous trademark is \"linked to products of shoddy quality, or is portrayed in an unwholesome or unsavory context\" such that \"the public will associate the lack of quality or lack of prestige in the defendant's goods with the plaintiff's unrelated goods.\" Scott Fetzer Co. v. House of Vacuums Inc., 381 F.3d 477, 489 (5th Cir.2004) (internal quotation marks omitted).\nFinally, the FTDA expressly excludes from its reach \"[a]ny fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services.\" 15 U.S.C. § 1125(c)(3)(A). The statute specifically provides comparative advertising and parody as examples of non-dilutive fair uses. See 15 U.S.C. § 1125(c)(3)(A)(i) &amp; (ii). Accordingly, \"fair use,\" though not so labeled in the statute, essentially amounts to an affirmative defense against a claim of trademark dilution. Cf. KP Permanent Make-Up v. Lasting Impression I, Inc., *168 543 U.S. 111, 117-18, 125 S.Ct. 542, 160 L.Ed.2d 440 (2004).\nTo state a prima facie dilution claim under the FTDA, the plaintiff must show the following:\n(1) that the plaintiff owns a famous mark that is distinctive;\n(2) that the defendant has commenced using a mark in commerce that allegedly is diluting the famous mark;\n(3) that a similarity between the defendant's mark and the famous mark gives rise to an association between the marks; and\n(4) that the association is likely to impair the distinctiveness of the famous mark or likely to harm the reputation of the famous mark.\nLouis Vuitton, 507 F.3d at 264-65.\nThe district court granted summary judgment for Google on the dilution claim on two bases. First, the district court held that Rosetta Stone was required but failed to present evidence that Google was \"us[ing] the Rosetta Stone Marks to identify its own goods and services.\" Rosetta Stone, 730 F.Supp.2d at 551. To support its conclusion, the district court relied on the text of the statutory \"fair use\" defense that shields a person's \"fair use\" of plaintiff's mark so long as such use is not as \"a designation of source for the person's own goods or services.\" 15 U.S.C. § 1125(c)(3)(A).\nSecond, the district court concluded that Rosetta Stone failed to show that Google's use of the mark was likely to impair the distinctiveness of or harm the reputation of the ROSETTA STONE marks. Specifically, the district court indicated that there was \"no evidence of dilution by blurring when Rosetta Stone's brand awareness has only increased since Google revised its trademark policy in 2004,\" and the court noted evidence that Rosetta Stone's \"brand awareness equity also increased from 19% in 2005 to 95% in 2009.\" Rosetta Stone, 730 F.Supp.2d at 551. In support of this conclusion, the district court read our decision in Louis Vuitton to establish the proposition that \"no claim for dilution by blurring exists where a defendants' product only increases public identification of the plaintiffs' marks.\" Id.\n\nA. Google's Non-Trademark Use of Rosetta Stone's Marks\nWe first consider the district court's grant of summary judgment based on the lack of evidence that Google used the ROSETTA STONE marks \"to identify its own goods and services.\" Id. The district court held that Rosetta Stone could not establish its dilution claim, specifically, the third element, without showing that Google used the mark as a source identifier for its products and services. See id. at 550-51. In support of this conclusion, however, the district court relied upon the \"fair use\" defense available under the FTDA. See 15 U.S.C. § 1125(c)(3)(A) (\"Any fair use, including a nominative or descriptive fair use, or facilitation of such fair use, of a famous mark by another person other than as a designation of source for the person's own goods or services\" is not \"actionable as dilution by blurring or dilution by tarnishment.\") Thus, the district court apparently concluded that Rosetta Stone was required, as part of its prima facie showing of dilution under the FTDA, to demonstrate that Google was using the mark as a source identifier for Google's own goods.\nWe view § 1125(c)(3)(A) as affording a fair use defense to defendants in dilution actions. See Louis Vuitton, 507 F.3d at 265-66. In our view, once the owner of a famous mark establishes a prima facie case of dilution by blurring or tarnishment, it falls to the defendant to demonstrate that its use constituted a \"fair *169 use . . . other than as a designation of source for the [defendant's] own goods or services,\" 15 U.S.C. § 1125(c)(3)(A). Whether Google used the mark other than as a source identifier and in good faith is an issue that Google, not Rosetta Stone, is obligated to establish. Thus, the district court erroneously required Rosetta Stone to demonstrate that Google was using the ROSETTA STONE mark as a source identifier for Google's own products.\nMore importantly, the district court erred when it ruled that Google was not liable for dilution simply because there was no evidence that Google uses the Rosetta Stone marks to identify Google's own goods and services. In essence, the district court made nontrademark use coextensive with the \"fair use\" defense under the FTDA. The statute, however, requires more than showing that defendant's use was \"other than as a designation of source\"—the defendant's use must also qualify as a \"fair use.\" 15 U.S.C. § 1125(c)(3)(A). Indeed, if the district court's analysis is correct—that is, if a federal trademark dilution claim is doomed solely by the lack of proof showing that the defendant used the famous mark as a trademark—then the term \"fair use\" as set forth in § 1125(c)(3)(A) would be superfluous.\nThe district court failed to determine whether this was \"fair use\". Although the FTDA does not expressly define \"fair use,\" the classic concept of \"fair use\" is well-established and incorporated as an affirmative defense to a claim of trademark infringement. See 15 U.S.C. § 1115(b)(4). The contours of the fair-use defense in the infringement context are therefore instructive on the classic or descriptive fair-use defense to a dilution claim. See Sullivan v. Stroop, 496 U.S. 478, 484, 110 S.Ct. 2499, 110 L.Ed.2d 438 (1990) (\"[I]dentical words used in different parts of the same act are intended to have the same meaning.\" (internal quotation marks omitted)).\nDescriptive, or classic, fair use applies when the defendant is using a trademark \"in its primary, descriptive sense\" to describe the defendant's goods or services. Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1031 (9th Cir.2010) (internal quotation marks omitted); see 15 U.S.C. § 1115(b)(4). The FTDA also expressly includes \"nominative\" fair use as a defense. See 15 U.S.C. § 1125(c)(3)(A). Typically, nominative fair use comes into play when the defendant uses the famous mark to identify or compare the trademark owner's product. See New Kids on the Block, 971 F.2d at 308; 4 McCarthy § 23.11. Regardless of the type of fair use claimed by a defendant, a common component of fair use is good faith. See, e.g., JA Apparel Corp. v. Abboud, 568 F.3d 390, 401 (2d Cir.2009) (\"Assessment of this defense thus requires analysis of whether a given use was (1) other than as a mark, (2) in a descriptive sense, and (3) in good faith.\" (internal quotation marks omitted)); Sands, Taylor &amp; Wood Co. v. Quaker Oats Co., 978 F.2d 947, 951 (7th Cir.1992) (\"To prevail on the fair use defense, the defendant must establish that it has used the plaintiff's mark, in good faith, to describe its (defendant's) product and otherwise than as a trademark.\" (internal quotation marks omitted)). In this context, \"the inquiry into the defendant's good faith `concerns the question whether the user of a mark intended to create consumer confusion as to source or sponsorship.'\" JA Apparel Corp., 568 F.3d at 400; see also Bd. of Supervisors v. Smack Apparel Co., 550 F.3d 465, 489 (5th Cir.2008) (explaining that \"in order to avail [itself] of the nominative fair use defense[,] the defendant (1) may only use so much of the mark as necessary to identify the product or *170 service and (2) may not do anything that suggests affiliation, sponsorship, or endorsement by the markholder.\" (internal quotation marks omitted)).\nIn short, the court's summary judgment order omitted this analysis, impermissibly omitting the question of good faith and collapsing the fair-use defense into one question—whether or not Google uses the ROSETTA STONE mark as a source identifier for its own products. Accordingly, we vacate the district court's summary judgment order and remand for reconsideration of Rosetta Stone's dilution claim. If the district court determines that Rosetta Stone has made a prima facie showing under the elements set forth in Louis Vuitton, 507 F.3d at 264-65, it should reexamine the nominative fair-use defense in light of this opinion.\n\nB. Likelihood of Dilution\nAlternatively, the district court held that Rosetta Stone failed to satisfy the fourth and final element of its trademark dilution claim requiring that the plaintiff show defendant's use is \"likely to impair the distinctiveness of the famous mark or likely to harm the reputation of the famous mark.\" Id. at 265. The court based its conclusion solely on the fact that \"Rosetta Stone's brand awareness ha[d] only increased since Google revised its trademark policy in 2004.\" Rosetta Stone, 730 F.Supp.2d at 551. On the strength of this evidence, the district court concluded that \"the distinctiveness of the Rosetta Stone Marks has not been impaired\" and therefore that \"Rosetta Stone cannot show that Google's trademark policy likely caused dilution by blurring.\" Id.\nTo determine whether the defendant's use is likely to impair the distinctiveness of the plaintiff's famous mark, the FTDA enumerates a non-exhaustive list of six factors that are to be considered by the courts:\nIn determining whether a mark or trade name is likely to cause dilution by blurring, the court may consider all relevant factors, including the following:\n(i) The degree of similarity between the mark or trade name and the famous mark.\n(ii) The degree of inherent or acquired distinctiveness of the famous mark.\n(iii) The extent to which the owner of the famous mark is engaging in substantially exclusive use of the mark.\n(iv) The degree of recognition of the famous mark.\n(v) Whether the user of the mark or trade name intended to create an association with the famous mark.\n(vi) Any actual association between the mark or trade name and the famous mark.\n15 U.S.C. § 1125(c)(2)(B). Although \"[n]ot every factor will be relevant in every case, and not every blurring claim will require extensive discussion of the factors[,] . . . a trial court must offer a sufficient indication of which factors it has found persuasive and explain why they are persuasive.\" Louis Vuitton, 507 F.3d at 266.\nThe district court addressed only one factor—the degree of recognition of Rosetta Stone's mark—and did not mention any other remaining statutory factor. The court's reliance on Louis Vuitton for the proposition that no claim for dilution by blurring exists when there is evidence that public recognition of the defendants' product increased was error. Louis Vuitton addressed a far different fact pattern, where the defendant's fair use claim was based on parody, which Congress expressly included as a protected fair use under the FTDA so long as the mark being parodied is not being \"used as a designation *171 of source for the person's own goods or services.\" See 15 U.S.C.A. § 1125(c)(3)(A)(ii). We concluded that a successful parody \"might actually enhance the famous mark's distinctiveness by making it an icon. The brunt of the joke becomes yet more famous.\" Louis Vuitton, 507 F.3d at 267 (4th Cir.2007) (emphasis added). We disagree, therefore, the district court's reading of Louis Vuitton. Under the FTDA, Rosetta Stone must show only a likelihood of dilution and need not prove actual economic loss or reputational injury. See id. at 264 n. 2. The decision below employed a truncated analysis that placed a very heavy emphasis upon whether there had been any actual injury suffered by Rosetta Stone's brand. On remand, the court should address whichever additional factors might apply to inform its determination of whether Google's use is likely to impair the distinctiveness of Rosetta Stone's mark. See 15 U.S.C. § 1125(c)(2)(B).\n\nC. When did Rosetta Stone's marks become famous?\nUnder the FTDA, the owner of a famous mark may obtain injunctive relief against any \"person who, at any time after the owner's mark has become famous, commences use of a mark . . . in commerce that is likely to cause dilution.\" 15 U.S.C. § 1125(c)(1) (emphasis added). A threshold issue, therefore, is whether the plaintiff's mark became famous, if at all, before the defendant began using the mark in commerce. Although the district court held that Rosetta Stone's mark had become famous before Google began using it, \"we are not limited to evaluation of the grounds offered by the district court to support its decision . . . [and] may affirm on any grounds apparent from the record.\" Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir.2009) (internal quotation marks omitted). Accordingly, we consider Google's argument that Rosetta Stone's marks were not famous in 2004 when Google allegedly began using the mark in commerce.\nUnder the statute, \"a mark is famous if it is widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark's owner.\" 15 U.S.C. § 1125(c)(2)(A). This is not an easy standard to achieve. \"[C]ourts agree that a mark must be truly prominent and renowned to be granted the extraordinary scope of exclusive rights created by the Federal Antidilution Act.\" 4 McCarthy § 24:104. \"Because protection from dilution comes close to being a `right in gross,'. . . the FTDA extends dilution protection only to those whose mark is a `household name.'\" Nissan Motor Co. v. Nissan Computer Corp., 378 F.3d 1002, 1011 (9th Cir. 2004).\nAdditionally, for § 1125(c)(1) to apply, the defendant must have \"commence[d]\" a diluting use of the plaintiff's mark after the point at which the mark became famous. The policy basis for this rule \"reflects the fair and equitable principle that one should not be liable for dilution by the use of a mark which was legal when first used.\" 4 McCarthy § 24:103. Professor McCarthy explains as follows:\n[I]f at the time of first use, Zeta's mark did not dilute Alpha's mark because Alpha's mark was not then famous, Zeta's use will not at some future time become diluting and illegal solely because Alpha's mark later became \"famous.\" That is, Alpha will not at some future time have a federal dilution claim against Zeta's mark. Thus, the junior user must be proven to have first used its mark after the time that plaintiff's mark achieved fame. . . .\n\n*172 This rule is modeled after that applied in traditional confusion cases where the plaintiff must prove secondary meaning. In those cases, the senior user must prove that secondary meaning in its mark was established prior to the junior user's first use. . . .\n4 McCarthy § 24:103 (footnote omitted). Stated differently, the defendant's first diluting use of a famous mark \"fixes the time by which famousness is to be measured\" for purposes of the FTDA. Nissan Motor Co., 378 F.3d at 1013.\nThe district court concluded that \"Rosetta Stone Marks are famous and have been since at least 2009, when Rosetta Stone's brand awareness reached 75%.\" Rosetta Stone, 730 F.Supp.2d at 550. The court explained that \"[t]he Marks need not have been famous when Google revised its trademark policy in 2004. Instead, Rosetta Stone must only show that at any time after its Marks became famous, Google began using a mark or trade name in commerce that was likely to cause dilution of the Rosetta Stone Marks.\" Id.\nAccording to Google, however, even if ROSETTA STONE had become a famous brand by 2009, it was not famous when Google began its alleged facilitation of the use of ROSETTA STONE in 2004. Indeed, Rosetta Stone alleges in its Complaint that the use of ROSETTA STONE and other trademarks as keywords in Google's AdWords program \"lessen[ed] the capacity of Rosetta Stone's famous and distinctive. . . Marks to distinguish Rosetta Stone's products and services from those of others, and has diluted the distinctive quality\" of the marks. J.A. 56. The use of Rosetta Stone's mark as a keyword trigger began at least as early as 2004. Google points to survey evidence reflecting that, in 2005, two percent of the general population of Internet users recognized ROSETTA STONE without being prompted while 13 percent recognized ROSETTA STONE with prompting.\nIn response, Rosetta Stone argues that Google first began permitting the use of Rosetta Stone's mark in sponsored ad text in 2009, by which time it had become famous. Thus, Rosetta Stone's position is that the phrase \"commences use\" in § 1125(c)(1) refers to any diluting use in commerce, not merely the first. This argument, of course, undercuts Rosetta Stone's own Complaint, which clearly asserts that Google diluted Rosetta Stone's mark beginning in 2004 by permitting the use of trademarks such as ROSETTA STONE as keyword triggers. Rosetta Stone asks us to ignore this alleged diluting use for purposes of § 1125(c)(1). The statute does not permit the owner of a famous mark to pick and choose which diluting use counts for purposes of § 1125(c)(1). See Nissan Motor Co., 378 F.3d at 1013 (\"If . . . first use for purposes of § 1125(c) turned on whatever use the mark's owner finds particularly objectionable, owners of famous marks would have the authority to decide when an allegedly diluting use was objectionable, regardless of when the party accused of diluting first began to use the mark.\"). The fame of Rosetta Stone's mark, therefore, should be measured from 2004, when Rosetta Stone alleges Google's diluting use of its mark began.\nAlternatively, Rosetta Stone suggests that it produced evidence showing that its mark was famous in 2004. It is, however, unclear from the voluminous record precisely which evidence reflects ROSETTA STONE's fame in 2004, and we think the better course is for the district court to handle this fact-intensive question of when Rosetta Stone's mark became famous in the first instance, particularly since other facets of the dilution claim will be reconsidered on remand. Thus, on remand, the *173 district court should reconsider whether ROSETTA STONE was a famous mark for purposes of its dilution claim against Google. That will require the court first to determine when Google made its first ostensibly diluting use of the mark. Second, the court must decide whether Rosetta Stone's mark was famous at that point. In making the latter determination, the district court should assess fame in light of the relevant statutory factors, see 15 U.S.C. § 1125(c)(2)(A), as well as the strong showing required to establish fame under this statute, see, e.g., I.P. Lund Trading ApS v. Kohler Co., 163 F.3d 27, 46 (1st Cir.1998) (explaining that to satisfy the famousness requirement, \"a mark had to be truly prominent and renowned\" (internal quotation marks omitted)).\n\nVII. Conclusion\nFor the foregoing reasons, we affirm the district court's order with respect to the vicarious infringement and unjust enrichment claims. We vacate, however, the district court's order with respect to Rosetta Stone's direct infringement, contributory infringement and dilution claims, and we remand the case for further proceedings on those three claims.\nAFFIRMED IN PART, VACATED IN PART, AND REMANDED\nNOTES\n[1] The actual Rosetta Stone, discovered in 1799, is a granite stele bearing a royal Egyptian decree etched in three languages: Greek, hieroglyphic, and demotic. The discovery of this stone became the \"key to the deciphering of Egyptian hieroglyphics.\" Barbara Green, Cracking the Code: Interpreting and Enforcing the Appellate Court's Decision and Mandate, 32 Stet. L.Rev. 393, 393 (2003) (internal quotation marks omitted). The term \"Rosetta Stone\" has become somewhat of a common metaphor for anything that provides the means for solving a difficult problem or understanding a code.\n[2] Rosetta Stone conducted a brand equity study in February 2009 showing a substantial gap in actual recognition of the Rosetta Stone mark and the closest competing brand. When asked to identify without prompting \"all brand names that come to mind when you think of language learning,\" almost 45% of the respondents were able to recall \"Rosetta Stone,\" while only about 6% thought of \"Berlitz,\" the second-place finisher. J.A. 2288. When prompted, 74% indicated they had heard of Rosetta Stone language products. Berlitz, again the closest competitor, was familiar to only 23% of the respondents when prompted.\n[3] This automated tool checks the \"landing page\"—i.e., the page linked to the ad referring to the trademark—and determines whether the page uses the trademark prominently; whether the page contains commercial information suggesting the sponsor is a reseller; and whether the landing page is a review site.\n[4] We note, however, that Google, in its memorandum filed in support of its motion for summary judgment, argued that it had not \"used\" Rosetta Stone's marks as contemplated by 15 U.S.C. § 1114(a), but rather had merely sold advertising space to others who were \"using\" the mark. J.A. 4103. And, we see nothing in the hearing transcript suggesting that Google conceded that it \"used\" the mark \"in commerce\" and \"in connection with the sale, offering for sale, distribution, or advertising of any goods or services.\" 15 U.S.C. § 1114(1)(a). Since it is not an issue in this appeal, we express no opinion today as to whether Google \"used\" these marks as contemplated by the Lanham Act. See, e.g., Rescuecom Corp. v. Google Inc., 562 F.3d 123, 129-31 (2d Cir.2009) (holding that Google's auctioning of trademarks qualifies as a \"use in commerce\").\n[5] We reject Rosetta Stone's contention that it is entitled to a presumption of confusion on the infringement claim and that the district court erred in failing to afford such a presumption. In this circuit, \"a presumption of likelihood of consumer confusion\" arises from the \"intentional copying\" of plaintiff's trade dress or trademark by a defendant. See, e.g., Osem Food Indus. Ltd. v. Sherwood Foods, Inc., 917 F.2d 161, 164 (4th Cir. 1990); Shakespeare Co. v. Silstar Corp. of Am., Inc., 110 F.3d 234, 239 (4th Cir.1997). The \"presumption arises only when the copier inten[ds] to exploit the good will created by an already registered trademark.\" Shakespeare, 110 F.3d at 239 (internal quotation marks omitted). Thus, where \"one produces counterfeit goods in an apparent attempt to capitalize upon the popularity of, and demand for, another's product, there is a presumption of a likelihood of confusion.\" Polo Fashions, Inc. v. Craftex, Inc., 816 F.2d 145, 148 (4th Cir. 1987). We apply such a presumption because \"one who tries to deceive the public should hardly be allowed to prove that the public has not in fact been deceived.\" Shakespeare, 110 F.3d at 239. Here, however, there is absolutely no evidence that Google intentionally copied or adopted Rosetta Stone's mark in an effort to pass off its own goods or services under the ROSETTA STONE mark.\n[6] Elaborating on the idea that the functionality doctrine keeps trademark law from \"inhibiting legitimate competition by allowing a producer to control a useful product feature,\" Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164, 115 S.Ct. 1300, 131 L.Ed.2d 248 (1995), the Supreme Court noted that if a feature is functional, \"exclusive use . . . would put competitors at a significant nonreputation-related disadvantage,\" id. at 165, 115 S.Ct. 1300. However, \"[w]here the design is functional under the Inwood formulation there is no need to proceed further to consider if there is a competitive necessity for the feature.\" TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 33, 121 S.Ct. 1255, 149 L.Ed.2d 164 (2001).\n[7] eBay maintained a \"Verified Rights Owner (`VeRO') Program,\" which allowed trademark owners to report potentially infringing items so that eBay could remove the associated listings. See Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93, 99 (2d Cir.2010). The district court found that the trial evidence showed eBay promptly removed challenged listings from its website. See id. at 106.\n[8] On appeal, Rosetta Stone clarified that its unjust enrichment claim arises from Google's business practice of selling trademarks as keywords that trigger the display of sponsored links rather than the content of the sponsored links. In light of our conclusion that Rosetta Stone failed to state an unjust enrichment claim as to the use of its marks as keywords, we need not address the district court's alternative holding that, to the extent advertisers used Rosetta Stone's marks in the text of their ads, Google was entitled to \"immunity\" under the Communications Decency Act \"because Google is no more than an interactive computer service provider and cannot be liable for the actions of third party advertisers.\" Rosetta Stone Ltd. v. Google Inc., 732 F.Supp.2d 628, 632 (E.D.Va.2010) (footnote omitted); see 47 U.S.C. § 230(c)(1) (\"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.\").\n\n", "ocr": false, "opinion_id": 626941 } ]
Fourth Circuit
Court of Appeals for the Fourth Circuit
F
USA, Federal
300,438
Ely, Hamley, Per Curiam, Trask
1971-12-22
false
united-states-v-arthur-benjamin-moore
null
United States v. Arthur Benjamin Moore
UNITED STATES of America, Appellee, v. Arthur Benjamin MOORE, Appellant
Saltzman & Goldin, Hollywood, Cal., for appellant., Robert L. Meyer, U. S. Atty., Erie A. Nobles, Chief, Crim. Div., Barbara Meiers, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
null
null
null
null
null
null
null
null
null
null
21
Published
null
<parties data-order="0" data-type="parties" id="b634-7"> UNITED STATES of America, Appellee, v. Arthur Benjamin MOORE, Appellant. </parties><docketnumber data-order="1" data-type="docketnumber" id="Azz"> No. 71-1546. </docketnumber><br><court data-order="2" data-type="court" id="b634-9"> United States Court of Appeals, Ninth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b634-10"> Dec. 22, 1971. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b635-4"> <span citation-index="1" class="star-pagination" label="577"> *577 </span> Saltzman &amp; Goldin, Hollywood, Cal., for appellant. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b635-5"> Robert L. Meyer, U. S. Atty., Erie A. Nobles, Chief, Crim. Div., Barbara Meiers, Asst. U. S. Atty., Los Angeles, Cal., for appellee. </attorneys><br><p data-order="6" data-type="judges" id="b635-6"> Before HAMLEY, ELY and TRASK, Circuit Judges. </p>
[ "452 F.2d 576" ]
[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/452/452.F2d.576.71-1546.html", "author_id": null, "opinion_text": "452 F.2d 576\n UNITED STATES of America, Appellee,v.Arthur Benjamin MOORE, Appellant.\n No. 71-1546.\n United States Court of Appeals,Ninth Circuit.\n Dec. 22, 1971.\n \n Saltzman &amp; Goldin, Hollywood, Cal., for appellant.\n Robert L. Meyer, U. S. Atty., Eric A. Nobles, Chief, Crim. Div., Barbara Meiers, Asst. U. S. Atty., Los Angeles, Cal., for appellee.\n Before HAMLEY, ELY and TRASK, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Arthur Benjamin Moore appeals from his conviction on all counts of a fourcount indictment charging possession and sale of secobarbital, a depressant or stimulant drug, in violation of 21 U.S.C. Sec. 331(q) (2) and (3) (Supp. V, 1970) (since repealed). Count one charged possession of 5,240 capsules containing secobarbital on May 16, 1969. Count two charged that Moore sold and delivered these capsules to Agent Michael T. Hurley of the Federal Bureau of Narcotics and Dangerous Drugs on the same day. Count three charged possession of 5,190 capsules containing secobarbital on May 22, 1969. Count four charged that Moore sold and delivered these capsules to Agent Hurley on the same day. Concurrent two-year sentences were imposed on all counts.\n \n \n 2\n While the notice of appeal is directed to the judgment in its entirety, Moore's brief on appeal questions only the convictions under counts one and two, pertaining to the May 16, 1969, transaction. It follows that the convictions under counts three and four, being unchallenged in Moore's brief, must be affirmed.\n \n \n 3\n Under the concurrent sentences doctrine, as enunciated by the Supreme Court in Benton v. Maryland, 395 U.S. 784, 791, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969), a federal appellate court, as a matter of discretion, may decide that it is unnecessary to consider arguments advanced by an appellant with regard to his conviction under one or more counts of an indictment, if he was at the same time validly convicted of other offenses under other counts and concurrent sentences were imposed. As indicated in Benton, whether the appellate court may decide that it is unnecessary to consider certain arguments under the concurrent sentence rule depends upon the court's determination, in the exercise of its discretion, whether it is possible that the convictions which would thus not be examined \"will entail collateral legal consequences.\"\n \n \n 4\n We do not perceive what collateral legal consequences adverse to Moore, over and above those springing from the convictions on counts three and four, could result if the convictions on counts one and two are permitted to stand. While appellee urged application of the concurrent sentence rule in the answering brief, Moore has not, by reply brief or otherwise, suggested why it should not be applied.\n \n \n 5\n We accordingly apply the rule and, in the exercise of our discretion, decline to consider Moore's arguments directed solely to the convictions under counts one and two.\n \n \n 6\n Affirmed.\n \n ", "ocr": false, "opinion_id": 300438 } ]
Ninth Circuit
Court of Appeals for the Ninth Circuit
F
USA, Federal
301,774
null
1971-12-01
false
stockwell-v-la-vallee
Stockwell
Stockwell v. La Vallee
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "455 F.2d 1406" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/455/455.F2d.1406.71-1772.html", "author_id": null, "opinion_text": "455 F.2d 1406\n Stockwellv.La Vallee\n 71-1772\n United States Court of Appeals Second Circuit\n Dec. 1, 1971\n \n 1\n N.D.N.Y.\n \n \n 2\n (The decision of the Court is referenced in a 'Table of Decisions Without Reported Opinions' appearing in the Federal Reporter. The Second Circuit provides by rule for disposition by summary order when a decision is unanimous and each judge believes that 'no jurisprudential purpose would be served by a written opinion.' Decisions without formal opinions 'shall not be cited or otherwise used in unrelated cases.' Second Circuit Rules, &#167; 0.23, 28 U.S.C.A.)\n \n ", "ocr": false, "opinion_id": 301774 } ]
Second Circuit
Court of Appeals for the Second Circuit
F
USA, Federal
93,343
Gray, After Stating the Case as Above
1892-04-18
false
brown-v-massachusetts
Brown
Brown v. Massachusetts
Brown v. Massachusetts
Mr. R. JD. Weston-Smiih (with whom- was Mr. H. W. Chayplim, on the brief) for plaintiff in error., Mr. Albert E. Pillsbury, Attorney General of the State of Massachusetts, for defendant in- error.
null
null
<p>A defendant indicted in a state court for’forging discharges for money payable by a municipal corporation, with intent to defraud it, pleaded in abatement to the array of the grand jury, and to the array of the traverse ' jury, that all the” jurors were inhabitants of the municipality, but did not at that stage of the case claim in any 'form a right or immunity under the Constitution of the United States. After conviction, the defendant, by motion in arrest of .judgment, and.by exception to the jurisdiction of the court, objected that the proceedings were in violation of the Fourteenth Amendment to the Constitution of the United States for the same reason, and also because the selectmen of the municipality who-prepared the jury list, and took the principal part in drawing the jurors, were at the same time actively promoting this prosecution. The highest court of the State held the objections taken.before verdict to be unfounded, and those after verdict to be taken too late. Held, that this, court had no jurisdiction to review the judgment on writ of error.</p>
null
ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS. An indictment was found by the grand jury in the superior court for the county of Nantucket and Commonwealth of Massachusetts, on c. 204, §§ 1,"2, of the Public .Statutes of Massachusetts, containing twenty-four counts, each of which was for forging, or for uttering, a discharge for money payable by the county of Nantucket, or by the town of Nantucket, with intent to defraud the county,’or the town. The town and county of Nantucket are geographically identical ; the selectmen of the town have the powers of county commissioners; the town may raise money to pay the expenses of the county ; and the treasurer of the town is county treasurer. Mass. Pub. Stat. c. 22, § 29; c. 23, § 4. By the general jury act of Massachusetts, in every town, lists of persons qualified to serve as jurors are prepared annually by the selectmen, and are subject to revision by the town in town meeting; and all grand jurors and traverse jurors are drawn by lot from the names on such lists. Mass. Pub. Stat. c. 170, §§ 6-22. That act contains the following profusions: ' “ Sec. 38. In indictments and penal actions for the recovery of a sum of money or other thing forfeited, it shall not be a. cause of challenge to a juror that he is liable to pay taxes in. a county, city or town, which rmay -be benefited by such recovery. “Sec. 39. íf a party knows of an objection to a juror in season to propose, it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court. “Sec. 40. No irregularity in a writ of venire facias, or in the drawing, summoning, returning or empanelling of jurors, shall be sufficient to set . aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the. returning of the verdict.” The act of Massachusetts concerning proceedings before ' judgment in criminal cases contains this provision: “No motion in arrest of judgment shall be allowed for a cause existing before verdict, unless the samé affects the jurisdiction of the court.” Mass. Pub. Stat. c. 214, §.27. ■ The defendant pleaded in abatement to the array of the grand jury, and afterwards to the array of the traverse jury, upon several grounds, the only one of which relied on at the argument in this court was “bécause the names of said jurors were not- drawn from the list of jurors in the manner provided by law.” The district attorney filed a replication to each plea; and at the hearing thereon it. appeared that the crimes charged in the indictment were committed, if at all, in regard' to vouchers presented to the town and county treasurer, with-intent to defraud -the town or the county; and the defendant requested the court to rule, “that by reason of bias and interest a grand jury” (or “a jury”) “drawn and made up from the inhabitants of the town and county of Nantucket was not competent' to make a presentment” (or “to try an indictment”) “for crimes against the county or town treasury.” The court declined so to rule, and overruled each plea; the defendant duly excepted to each ruling, and pleaded not guilty, and was thereupon tried and convicted; and his ex-, ceptions were overruled by the Supreme Judicial Court of Massachusetts, for reasons stated in the rescript sent down to' the superior court as follows: “ The .jurors were not disqualified to serve by reason of interest as inhabitants of the. town or county of Nantucket.” The opinion ■ then delivered is annexed to the transcript of the record, as required .by Rule 8 of this court, and is reported in 147 Mass. 585. The defendant then filed in the Superior Court a motion in arrest of. judgment, rehewing the same objections to the grand and traverse juries; and further alleging that before the finding of the indictment the selectmen had been directed, by a vote of the town at a meeting duly warned, to prosecute the defendant for the offences described in the indictment, and pursuant to that vote employed counsel, and a majority of' them, with the approval, of the others, made a complaint against the defendant for those offences before a trial justice, who was himself an inhabitant and voter of the town, and had taken part in the town meeting and in its vote, and had there declared that the defendant was guilty, and, before the making of the complaint, had advised and counselled with the. selectmen as to the furtherance of the prosecution; that the selectmen prosecuted the complaint, and obtained an order from the justice requiring the defendant to recognize for his appearance before the superior court, and prepared evidence and sought o.ut witnesses to be produced against him before, the grand jury; that while engaged in furthering such prose-' cution the selectmen prepared the list.from which were drawn the grand and traverse jurors who found and' tried the indictment against the defendant; „ that at the town meeting at. which such jurors were drawn no one was present, except the selectmen, and the constable who had served the warrant for the meeting; that of tlie twenty-three grand jurors who found the indictment, all but five had been present at the town meeting first mentioned, and had joined in the vote there adopted; and that for these reasons “ the presentment and the trial and conviction of the defendant were in conflict with the provisions of the constitution of this Commonwealth, and in particular of the provisions of the twelfth article of the Declaration of Eights, and were in conflict with the Constitution of the United States of America, and in particular with the provisions of the Fourteenth Amendment thereto.” Together with the motion in arrest of judgment, the defendant filed an “exception to the jurisdiction,” containing like allegations, and further alleging that by reason of the facts alleged the grand jurors had no authority to present, and the traverse jurors had.no authority to try, the indictment against the defendant, and the court had no jurisdiction to receive the presentment or to try the matter thereof. At the hearing of this motion and exception the district attorney admitted the facts alleged therein. The court overruled the motion and the exception. The defendant appealed from the order overruling the motion in arrest of judgment, and alleged exceptions to the overruling of his exception to ■ the jurisdiction. The Supreme Judicial Court of Massachusetts affirmed the order, and overruled the exceptions, for reasons stated in its. rescript to the superior court as follows: “ A motion in arrest of judgment can be sustained only for errors apparent on the-record. The record discloses no error. The exception to the jurisdiction is nothing but a motion in arrest of judgment under another name.” In the opinion then delivered, and duly transmitted to this court with the record, the Supreme Judicial Court, after deciding the case upon the grounds stated in this rescript, added: “ It is difficult to see how any question deserving serious consideration arises under the Constitution, either of this State or of the United States. In view of the authorities cited in the former opinion in this case, it can hardly be argued that a legislature' has no constitutional authority to. provide that mere inhabitancy in a town or county shall not disqualify one from sitting as a juror to try-a prisoner for unlawfully obtaining money from the treasury of the town or county. It has not been contended before us, that our statute forbidding the allowance of a motion in arrest of judgment for a cause existing before verdict, unless it affects the jurisdiction of the court, is unconstitutional, nor that the rule which confines proceedings upon motions in arrest to.matters apparent upon the record is in conflict either with the. Federal or State Constitution. "We are of- opinion that there was.no error in the proceedings in the superior court.” 15Q Mass. 334, 343. The superior court thereupon sentenced the defendant to imprisonment in the house of correction for two years and six months, and he sued out this writ of error. By the practice in Massachusetts, where a bill of exceptions or an appeal in matter of law is taken to the Supreme Judicial Court, the question of law only goes to that court, and the ■record, unless ordered up by that court, remains in the court below; and therefore this writ of error was addressed to the superior court. Mass. Pub. Stat. c. 150, §§ 7, 12; c. 153, § 15; McGuire v. Commonwealth, 3 Wall. 382; Bryan v. Bates, 12 Allen, 201, 205 ; Commonwealth v. Scott, 123 Mass. 418.
null
null
Argued April 6, 1892.
null
null
13
Published
<attorneys data-order="21" data-type="attorneys" id="b601-7"><em>Mr. R. JD. Weston-Smiih </em>(with whom- was <em>Mr. H. W. Chayplim, </em>on the brief) for plaintiff in error.</attorneys> <p data-order="22" data-type="legal" id="b601-8">The composition of the grand jury and the traverse jury exclusively from the inhabitants of the county and town of Nantucket made them necessarily a partial tribunal. Impartiality is of. course never absolute, but always relative.- Never-' theless it is a requirement, and it is for the courts — and under the Fourteenth Amendment for this court — to draw the line in any given case. The plaintiff in error was presented by a grand jury and tried by a trial' jury, composed exclusively of the town and county corporations against which his alleged crime was directed. This was in violation of the first principles of justice. ■ These grand and petit jurors were all disqualified.</p> <p data-order="23" data-type="legal" id="b601-9">The position of the selectmen as acting prosecutors under a <page-number citation-index="1" label="578">*578</page-number>vote of the town made them incompetent, under the Fourteenth Amendment, to prepare the preliminary list of jurors. It made them incompetent to compose, in their individual, capacity, substantially the whole town meeting held to revise that list and make it final. Seven men who were prosecuting the plaintiff in error for the offences finally embodied in the»indictment against him made up a list, from which, exclusively, was drawn the grand jury which indicted him, and from which was made up the trial jury. The -fruits of this action are seen in the fact that eighteen out of the twenty-three grand jurors were persons who had voted for the prosecution which these'prosecutors were promoting before them. 4 grand jury so made-up was as to this defendant a mere travesty of a grand juty, and was a nullity. The objection to it was jurisdictional; <em>McGregor </em>v. Crane, 98 Mass. 530; <em>Richardson </em>v. <em>Welcome, </em>6 Cush. 331; and as such may be taken at any stage. When'an objection-of this character goes to the •roots of the administration of justice, it is never too late to take it. This objection was one of such gravity that it could not be waived. <em>Hopt </em>v. <em>Utah, </em>110 U. S. 574; <em>Hill </em>v. <em>People, </em>16 Michigan, 351; <em>Williams </em>v. <em>Ohio, </em>12 Ohio St. 622; <em>Cancemi </em>v. <em>People, </em>18 N. Y. 128; <em>Harris </em>v. <em>People, </em>128 Illinois, 585; <em>McGregor </em>v. <em>Crane, </em>cited above; <em>Richardson </em>v. <em>Welcome, </em>cited above.</p> <p data-order="24" data-type="legal" id="b602-4">If any state statute stands in the way of the plaintiff in error upon this point, it is, when it operates upon objections so important as are now made, in conflict with the Fourteenth Amendment, as unduly clogging remedies. <em>Callan </em>v. <em>Wilson, </em>127 U. S. 540.</p> <p data-order="25" data-type="legal" id="b602-5">Even if this new question of fact does not, within the strictest meaning of the word “go to jurisdiction,” it involves so gross an impropriety, and an abuse of the forms of justice so- extreme as, in a proper exercise of judicial discretion, to vitiate the whole proceeding. <em>Hopt </em>v. <em>Utah, </em>cited above; <em>Edson </em>v. <em>Edson, </em>108 Mass. 590; <em>Oakley </em>v. <em>Aspinwall, </em>3 N. Y. 547.</p> <p data-order="26" data-type="legal" id="b602-6">' The fact that eighteen out of twenty-three grand jurors had joined in the vote for the prosecution which was being <page-number citation-index="1" label="579">*579</page-number>carried on before them by the agents of their town, whom they had helped to constitute such, made them, substantially, prosecutors, and disqualified them. Their action violated the first principle of justice: that no man shall be prosecutor and judge at the same time. This objection is,, like the objection last referred to, of so vital a character that it cannot be .waived. It is jurisdictional, or quasi-jurisdictional, and may be raised at any stage of the cause.</p> <attorneys data-order="27" data-type="attorneys" id="b603-4"><em>Mr. Albert E. Pillsbury, </em>Attorney General of the State of Massachusetts, for defendant in- error.</attorneys>
<parties data-order="0" data-type="parties" id="b597-6"> BROWN <em> v. </em> MASSACHUSETTS. </parties><br><summary data-order="1" data-type="summary" id="b597-7"> ERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS. </summary><br><docketnumber data-order="2" data-type="docketnumber" id="b597-8"> No. 839. </docketnumber><otherdate data-order="3" data-type="otherdate" id="AXU"> Argued April 6, 1892. </otherdate><decisiondate data-order="4" data-type="decisiondate" id="AuGI"> Decided April 18, 1892. </decisiondate><br><syllabus data-order="5" data-type="syllabus" id="b597-9"> A defendant indicted in a state court for’forging discharges for money payable by a municipal corporation, with intent to defraud it, pleaded in abatement to the array of the grand jury, and to the array of the traverse ' jury, that all the” jurors were inhabitants of the municipality, but did not at that stage of the case claim in any 'form a right or immunity under the Constitution of the United States. After conviction, the defendant, by motion in arrest of .judgment, and.by exception to the jurisdiction of the court, objected that the proceedings were in violation of the Fourteenth Amendment to the Constitution of the United States for the same reason, and also because the selectmen of the municipality who-prepared the jury list, and took the principal part in drawing the jurors, were at the same time actively promoting this prosecution. The highest court of the State held the objections taken.before verdict to be unfounded, and those after verdict to be taken too late. <em> Held, </em> that this, court had no jurisdiction to review the judgment on writ of error. </syllabus><br><summary data-order="6" data-type="summary" id="b597-10"> An indictment was found by the grand jury in the superior court for the county of Nantucket and Commonwealth of Massachusetts, on c. 204, §§ 1,"2, of the Public .Statutes of Massachusetts, containing twenty-four counts, each of which was for forging, or for uttering, a discharge for money payable by the county of Nantucket, or by the town of Nantucket, with intent to defraud the county,’or the town. </summary><br><summary data-order="7" data-type="summary" id="b597-11"> The town and county of Nantucket are geographically identical ; the selectmen of the town have the powers of county commissioners; the town may raise money to pay the expenses of the county ; and the treasurer of the town is county treasurer. Mass. Pub. Stat. c. 22, § 29; c. 23, § 4. </summary><summary data-order="8" data-type="summary" id="AON"> <span citation-index="1" class="star-pagination" label="574"> *574 </span> By the general jury act of Massachusetts, in every town, lists of persons qualified to serve as jurors are prepared annually by the selectmen, and are subject to revision by the town in town meeting; and all grand jurors and traverse jurors are drawn by lot from the names on such lists. Mass. Pub. Stat. c. 170, §§ 6-22. That act contains the following profusions: ' </summary><br><summary data-order="9" data-type="summary" id="b598-5"> “ Sec. 38. In indictments and penal actions for the recovery of a sum of money or other thing forfeited, it shall not be a. cause of challenge to a juror that he is liable to pay taxes in. a county, city or town, which rmay -be benefited by such recovery. </summary><summary data-order="10" data-type="summary" id="A1r"> “Sec. 39. íf a party knows of an objection to a juror in season to propose, it before the trial, and omits to do so, he shall not afterwards be allowed to make the same objection, unless by leave of the court. </summary><summary data-order="11" data-type="summary" id="AHY"> “Sec. 40. No irregularity in a writ of <em> venire facias, </em> or in the drawing, summoning, returning or empanelling of jurors, shall be sufficient to set . aside a verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the. returning of the verdict.” </summary><br><summary data-order="12" data-type="summary" id="b598-9"> The act of Massachusetts concerning proceedings before ' judgment in criminal cases contains this provision: “No motion in arrest of judgment shall be allowed for a cause existing before verdict, unless the samé affects the jurisdiction of the court.” Mass. Pub. Stat. c. 214, §.27. </summary><br><summary data-order="13" data-type="summary" id="b598-10"> ■ The defendant pleaded in abatement to the array of the grand jury, and afterwards to the array of the traverse jury, upon several grounds, the only one of which relied on at the argument in this court was “bécause the names of said jurors were not- drawn from the list of jurors in the manner provided by law.” The district attorney filed a replication to each plea; and at the hearing thereon it. appeared that the crimes charged in the indictment were committed, if at all, in regard' to vouchers presented to the town and county treasurer, with-intent to defraud -the town or the county; and the defendant requested the court to rule, “that by reason of bias and interest a grand jury” (or “a jury”) “drawn and made up from <span citation-index="1" class="star-pagination" label="575"> *575 </span> the inhabitants of the town and county of Nantucket was not competent' to make a presentment” (or “to try an indictment”) “for crimes against the county or town treasury.” The court declined so to rule, and overruled each plea; the defendant duly excepted to each ruling, and pleaded not guilty, and was thereupon tried and convicted; and his ex-, ceptions were overruled by the Supreme Judicial Court of Massachusetts, for reasons stated in the rescript sent down to' the superior court as follows: “ The .jurors were not disqualified to serve by reason of interest as inhabitants of the. town or county of Nantucket.” The opinion ■ then delivered is annexed to the transcript of the record, as required .by Rule 8 of this court, and is reported in 147 Mass. 585. </summary><summary data-order="14" data-type="summary" id="A6y"> The defendant then filed in the Superior Court a motion in arrest of. judgment, rehewing the same objections to the grand and traverse juries; and further alleging that before the finding of the indictment the selectmen had been directed, by a vote of the town at a meeting duly warned, to prosecute the defendant for the offences described in the indictment, and pursuant to that vote employed counsel, and a majority of' them, with the approval, of the others, made a complaint against the defendant for those offences before a trial justice, who was himself an inhabitant and voter of the town, and had taken part in the town meeting and in its vote, and had there declared that the defendant was guilty, and, before the making of the complaint, had advised and counselled with the. selectmen as to the furtherance of the prosecution; that the selectmen prosecuted the complaint, and obtained an order from the justice requiring the defendant to recognize for his appearance before the superior court, and prepared evidence and sought o.ut witnesses to be produced against him before, the grand jury; that while engaged in furthering such prose-' cution the selectmen prepared the list.from which were drawn the grand and traverse jurors who found and' tried the indictment against the defendant; „ that at the town meeting at. which such jurors were drawn no one was present, except the selectmen, and the constable who had served the warrant for the meeting; that of tlie twenty-three grand jurors who found <span citation-index="1" class="star-pagination" label="576"> *576 </span> the indictment, all but five had been present at the town meeting first mentioned, and had joined in the vote there adopted; and that for these reasons “ the presentment and the trial and conviction of the defendant were in conflict with the provisions of the constitution of this Commonwealth, and in particular of the provisions of the twelfth article of the Declaration of Eights, and were in conflict with the Constitution of the United States of America, and in particular with the provisions of the Fourteenth Amendment thereto.” </summary><br><summary data-order="15" data-type="summary" id="b600-5"> Together with the motion in arrest of judgment, the defendant filed an “exception to the jurisdiction,” containing like allegations, and further alleging that by reason of the facts alleged the grand jurors had no authority to present, and the traverse jurors had.no authority to try, the indictment against the defendant, and the court had no jurisdiction to receive the presentment or to try the matter thereof. </summary><br><summary data-order="16" data-type="summary" id="b600-6"> At the hearing of this motion and exception the district attorney admitted the facts alleged therein. The court overruled the motion and the exception. The defendant appealed from the order overruling the motion in arrest of judgment, and alleged exceptions to the overruling of his exception to ■ the jurisdiction. </summary><br><summary data-order="17" data-type="summary" id="b600-7"> The Supreme Judicial Court of Massachusetts affirmed the order, and overruled the exceptions, for reasons stated in its. rescript to the superior court as follows: “ A motion in arrest of judgment can be sustained only for errors apparent on the-record. The record discloses no error. The exception to the jurisdiction is nothing but a motion in arrest of judgment under another name.” </summary><br><summary data-order="18" data-type="summary" id="b600-8"> In the opinion then delivered, and duly transmitted to this court with the record, the Supreme Judicial Court, after deciding the case upon the grounds stated in this rescript, added: “ It is difficult to see how any question deserving serious consideration arises under the Constitution, either of this State or of the United States. In view of the authorities cited in the former opinion in this case, it can hardly be argued that a legislature' has no constitutional authority to. provide that mere inhabitancy in a town or county shall not disqualify one <span citation-index="1" class="star-pagination" label="577"> *577 </span> from sitting as a juror to try-a prisoner for unlawfully obtaining money from the treasury of the town or county. It has not been contended before us, that our statute forbidding the allowance of a motion in arrest of judgment for a cause existing before verdict, unless it affects the jurisdiction of the court, is unconstitutional, nor that the rule which confines proceedings upon motions in arrest to.matters apparent upon the record is in conflict either with the. Federal or State Constitution. "We are of- opinion that there was.no error in the proceedings in the superior court.” 15Q Mass. 334, 343. </summary><br><summary data-order="19" data-type="summary" id="b601-5"> The superior court thereupon sentenced the defendant to imprisonment in the house of correction for two years and six months, and he sued out this writ of error. </summary><br><summary data-order="20" data-type="summary" id="b601-6"> By the practice in Massachusetts, where a bill of exceptions or an appeal in matter of law is taken to the Supreme Judicial Court, the question of law only goes to that court, and the ■record, unless ordered up by that court, remains in the court below; and therefore this writ of error was addressed to the superior court. Mass. Pub. Stat. c. 150, §§ 7, 12; c. 153, § 15; <em> McGuire </em> v. <em> Commonwealth, </em> 3 Wall. 382; <em> Bryan </em> v. <em> Bates, </em> 12 Allen, 201, 205 ; <em> Commonwealth </em> v. <em> Scott, </em> 123 Mass. 418. </summary><br><attorneys data-order="21" data-type="attorneys" id="b601-7"> <em> Mr. R. JD. Weston-Smiih </em> (with whom- was <em> Mr. H. W. Chayplim, </em> on the brief) for plaintiff in error. </attorneys><br><p data-order="22" data-type="legal" id="b601-8"> The composition of the grand jury and the traverse jury exclusively from the inhabitants of the county and town of Nantucket made them necessarily a partial tribunal. Impartiality is of. course never absolute, but always relative.- Never-' theless it is a requirement, and it is for the courts — and under the Fourteenth Amendment for this court — to draw the line in any given case. The plaintiff in error was presented by a grand jury and tried by a trial' jury, composed exclusively of the town and county corporations against which his alleged crime was directed. This was in violation of the first principles of justice. ■ These grand and petit jurors were all disqualified. </p><br><p data-order="23" data-type="legal" id="b601-9"> The position of the selectmen as acting prosecutors under a <span citation-index="1" class="star-pagination" label="578"> *578 </span> vote of the town made them incompetent, under the Fourteenth Amendment, to prepare the preliminary list of jurors. It made them incompetent to compose, in their individual, capacity, substantially the whole town meeting held to revise that list and make it final. Seven men who were prosecuting the plaintiff in error for the offences finally embodied in the»indictment against him made up a list, from which, exclusively, was drawn the grand jury which indicted him, and from which was made up the trial jury. The -fruits of this action are seen in the fact that eighteen out of the twenty-three grand jurors were persons who had voted for the prosecution which these'prosecutors were promoting before them. 4 grand jury so made-up was as to this defendant a mere travesty of a grand juty, and was a nullity. The objection to it was jurisdictional; <em> McGregor </em> v. Crane, 98 Mass. 530; <em> Richardson </em> v. <em> Welcome, </em> 6 Cush. 331; and as such may be taken at any stage. When'an objection-of this character goes to the •roots of the administration of justice, it is never too late to take it. This objection was one of such gravity that it could not be waived. <em> Hopt </em> v. <em> Utah, </em> 110 U. S. 574; <em> Hill </em> v. <em> People, </em> 16 Michigan, 351; <em> Williams </em> v. <em> Ohio, </em> 12 Ohio St. 622; <em> Cancemi </em> v. <em> People, </em> 18 N. Y. 128; <em> Harris </em> v. <em> People, </em> 128 Illinois, 585; <em> McGregor </em> v. <em> Crane, </em> cited above; <em> Richardson </em> v. <em> Welcome, </em> cited above. </p><br><p data-order="24" data-type="legal" id="b602-4"> If any state statute stands in the way of the plaintiff in error upon this point, it is, when it operates upon objections so important as are now made, in conflict with the Fourteenth Amendment, as unduly clogging remedies. <em> Callan </em> v. <em> Wilson, </em> 127 U. S. 540. </p><br><p data-order="25" data-type="legal" id="b602-5"> Even if this new question of fact does not, within the strictest meaning of the word “go to jurisdiction,” it involves so gross an impropriety, and an abuse of the forms of justice so- extreme as, in a proper exercise of judicial discretion, to vitiate the whole proceeding. <em> Hopt </em> v. <em> Utah, </em> cited above; <em> Edson </em> v. <em> Edson, </em> 108 Mass. 590; <em> Oakley </em> v. <em> Aspinwall, </em> 3 N. Y. 547. </p><br><p data-order="26" data-type="legal" id="b602-6"> ' The fact that eighteen out of twenty-three grand jurors had joined in the vote for the prosecution which was being <span citation-index="1" class="star-pagination" label="579"> *579 </span> carried on before them by the agents of their town, whom they had helped to constitute such, made them, substantially, prosecutors, and disqualified them. Their action violated the first principle of justice: that no man shall be prosecutor and judge at the same time. This objection is,, like the objection last referred to, of so vital a character that it cannot be .waived. It is jurisdictional, or quasi-jurisdictional, and may be raised at any stage of the cause. </p><br><attorneys data-order="27" data-type="attorneys" id="b603-4"> <em> Mr. Albert E. Pillsbury, </em> Attorney General of the State of Massachusetts, for defendant in- error. </attorneys>
[ "144 U.S. 573", "12 S. Ct. 757", "36 L. Ed. 546", "1892 U.S. LEXIS 2103" ]
[ { "author_str": "Gray", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1268, "opinion_text": "\n144 U.S. 573 (1892)\nBROWN\nv.\nMASSACHUSETTS.\nNo. 839.\nSupreme Court of United States.\nArgued April 6, 1892.\nDecided April 18, 1892.\nERROR TO THE SUPERIOR COURT OF THE STATE OF MASSACHUSETTS.\n*577 Mr. R.D. Weston-Smith (with whom was Mr. H.W. Chaplin on the brief) for plaintiff in error.\nMr. Albert E. Pillsbury, Attorney General of the State of Massachusetts, for defendant in error.\n*579 MR. JUSTICE GRAY, after stating the case as above, delivered the opinion of the court.\nIn order to give this court jurisdiction, under section 709 of the Revised Statutes, to review on writ of error a decision of the highest court of a State against a title, right, privilege or immunity claimed under the Constitution of the United States, it must, as observed by Chief Justice Waite in Spies v. Illinois, \"appear on the record that such title, right, privilege or immunity was `specially set up or claimed' at the proper time in the proper way.\" 123 U.S. 131, 181.\nIn the case at bar, the only ground, on which it has been argued that the judgment of the Supreme Judicial Court of Massachusetts should be reversed, is that the plaintiff in error has been deprived of his liberty without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, because the grand jury by which he was indicted, and the traverse jury by which he was tried and convicted, were wholly composed of inhabitants of the town and county of Nantucket, which the indictment charged him with intending to defraud; and because the selectmen of the town, who prepared the jury list, and took the principal part in drawing the jurors, were at the same time actively promoting this prosecution.\nNo objection that the proceedings were in violation of the Constitution of the United States was taken in any form, *580 either expressly, or by any possible inference or implication, before verdict.\nNor was any such objection duly presented afterwards. In Massachusetts, as elsewhere, the errors suggested could not be availed of by motion in arrest of judgment, unless appearing on the face of the record. Commonwealth v. Edwards, 12 Cush. 187; Carter v. Bennett, 15 How. 354. And by the statutes of the State, the defendant was not entitled, after verdict, to object to the qualifications of the jurors, or to any irregularity in drawing them; nor could he move in arrest of judgment for any cause existing before verdict, and not affecting the jurisdiction of the court. Mass. Pub. Stat. c. 170, §§ 39, 40; c. 214, § 27. The objections taken did not affect the jurisdiction of the court in which the plaintiff in error was indicted and convicted, but only the regularity of the proceedings in obtaining the grand and traverse jurors. Ex parte Harding, 120 U.S. 782. The anomalous \"exception to the jurisdiction,\" filed after verdict, was held, and rightly held, by the state court to be nothing but a motion in arrest of judgment under another name.\nThe judgment of the highest court of the State was put upon the ground that these objections were not open after verdict, independently of the opinion of that court that the objections had no merits. As that ground was sufficient to support the judgment, no federal question is involved, and this court has no jurisdiction. The case cannot be distinguished in principle from Baldwin v. Kansas, 129 U.S. 52.\nWrit of error dismissed for want of jurisdiction.\n", "ocr": false, "opinion_id": 93343 } ]
Supreme Court
Supreme Court of the United States
F
USA, Federal
2,446,529
null
2010-09-09
false
com-v-ortiz
Com.
Com. v. Ortiz
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "5 A.3d 819" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n5 A.3d 819 (2010)\nCOM.\nv.\nORTIZ.\nNo. 235 MAL (2010).\nSupreme Court of Pennsylvania.\nSeptember 9, 2010.\nDisposition of Petition for Allowance of Appeal Denied.\n", "ocr": false, "opinion_id": 2446529 } ]
Supreme Court of Pennsylvania
Supreme Court of Pennsylvania
S
Pennsylvania, PA
1,190,725
Price, Smith
1951-05-12
false
shell-oil-co-v-board-of-county-commissioners
null
Shell Oil Co. v. Board of County Commissioners
Shell Oil Company, Incorporated, Appellee, v. Board of County Commissioners of Grant County, Kansas, H. W. Stubbs, W. P. Wesley and C. L. Dew, Appellants
Logan N. Green, of Garden City, argued the cause, and Roland H. Tate and Daniel R. Hopkins, both of Garden City, were with him on the briefs for the appellants., Kirke W. Dale, of Arkansas City, and Jesse M. Davis, of Tulsa, Oklahoma; argued the cause, and Chas. Vance, of Liberal, and Geo. W. Cunningham, of Tulsa, Oklahoma, were with them on the briefs for the appellee.
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<docketnumber id="b189-8"> No. 38,249 </docketnumber><br><parties id="b189-9"> Shell Oil Company, Incorporated, <em> Appellee, </em> v. Board of County Commissioners of Grant County, Kansas, H. W. Stubbs, W. P. Wesley and C. L. Dew, <em> Appellants. </em> </parties><br><citation id="b189-10"> (231 P. 2d 220) </citation><decisiondate id="AtN"> Opinion filed May 12, 1951. </decisiondate><br><attorneys id="b189-15"> <em> Logan N. Green, </em> of Garden City, argued the cause, and <em> Roland H. Tate </em> and <em> Daniel R. Hopkins, </em> both of Garden City, were with him on the briefs for the appellants. </attorneys><br><attorneys id="b190-4"> <span citation-index="1" class="star-pagination" label="160"> *160 </span> <em> Kirke </em> W. <em> Dale, </em> of Arkansas City, and <em> Jesse M. Davis, </em> of Tulsa, Oklahoma; argued the cause, and <em> Chas. Vance, </em> of Liberal, and <em> Geo. W. Cunningham, </em> of Tulsa, Oklahoma, were with them on the briefs for the appellee. </attorneys>
[ "231 P.2d 220", "171 Kan. 159" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4487, "opinion_text": "\n171 Kan. 159 (1951)\n231 P.2d 220\nSHELL OIL COMPANY, Incorporated, Appellee,\nv.\nBOARD OF COUNTY COMMISSIONERS OF GRANT COUNTY, KANSAS, H.W. STUBBS, W.P. WESLEY and C.L. DEW, Appellants.\nNo. 38,249\nSupreme Court of Kansas.\nOpinion filed May 12, 1951.\nLogan N. Green, of Garden City, argued the cause, and Roland H. Tate and Daniel R. Hopkins, both of Garden City, were with him on the briefs for the appellants.\n*160 Kirke W. Dale, of Arkansas City, and Jesse M. Davis, of Tulsa, Oklahoma, argued the cause, and Chas. Vance, of Liberal, and Geo. W. Cunningham, of Tulsa, Oklahoma, were with them on the briefs for the appellee.\nThe opinion of the court was delivered by\nPRICE, J.:\nThis was an action to vacate and set aside a judgment and all subsequent proceedings had in a tax foreclosure action. From a judgment setting aside the sheriff's sale and deed issued pursuant thereto, and quieting plaintiff's title to the property in question upon its compliance with the judgment, the defendant purchaser has appealed.\nThis is the second appearance in this court of litigation over the validity of the tax foreclosure judgment and sale in controversy. The first appeal was from an order overruling a demurrer to plaintiff's (appellee's) verified amended petition. Our decision affirming that ruling is found in Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P.2d 925. In that appeal two cases were consolidated. The instant appeal is in what was case No. 37,263, in the former appeal, and involves only the sale to C.L. Dew, a member of the Board of County Commissioners. In the interest of brevity the factual background of the matter as alleged in the verified amended petition will not here be set out, but the summary of those allegations, beginning at the bottom of page 643 and ending with the first paragraph commencing on page 645 of our former opinion, is by reference incorporated herein.\nThe parties will be referred to as in the court below.\nDefendant Dew's answer admits that at all times during the tax foreclosure action he was a duly elected and acting member of the Board of County Commissioners of Grant County; that he, together with other members of the Board, authorized and directed the county attorney to institute a tax foreclosure suit, and further authorized the employment of an outside attorney to assist in such procedure. He specifically denies he had prior knowledge that no tax lien existed against the property in question, and further alleges that in truth and in fact a valid tax lien at such time did exist. The answer further denies that he unlawfully, intentionally, wrongfully or fraudulently undertook to deprive plaintiff of the property, or that he practiced any fraud upon plaintiff or upon the court to procure a decree of foreclosure in the action, but, on the contrary, alleges that he acted in good faith in an effort to discharge his duties as a public officer, and that all of his acts, both individually and *161 as a public officer, were carried out and discharged in good faith. The answer then admits that he bid in the property in question at the sheriff's sale, as alleged by the plaintiff, but alleges he was interested in the property by reason of the fact he was the owner in fee of the surface and one-half of the mineral rights; that he bid in such property at a regularly conducted sheriff's sale, under competitive bidding; that he was the highest bidder therefor, and that all proceedings in connection with such foreclosure action, from its commencement down to and including the sale to him, were regular and in conformity with law, and were carried out in good faith by defendant and all parties concerned. The answer further alleges that plaintiff's cause of action, if it has any, is barred by the statute of limitations.\nThe cause proceeded to trial by the court. Oral testimony, if any was introduced, is not abstracted. The court made conclusions of fact and of law. Included in the former is a finding that taxes in the amount of $1.77, for the year 1932, had become delinquent when the property in question was standing in the name of one Long, plaintiff's grantor; that it had been bid in by Grant County and was entered on the delinquent tax sale records, and there carried until 1942, when it was foreclosed; that plaintiff was served by publication notice only, but, as a foreign corporation, could have been served through the secretary of state; that judgment was rendered June 9, 1942, finding the taxes on the undivided one-half mineral interest in question to be delinquent and unpaid in the amount of $3.27, and foreclosure of such tax lien was ordered. The court then made a finding that the property in question was sold by the sheriff of Grant County to defendant Dew for the amount of $10.00, and that such sale was confirmed and sheriff's deed issued to him.\nThe court further found:\n\"That C.L. Dew, the purchaser of said mineral interest in Case No. 1655, was duly elected as a member of the Board of County Commissioners of Grant County, Kansas, and qualified for such office in 1941, and was a member of said Board at the time the proceedings were instituted in Case No. 1655, at the time judgment was rendered, and at the time of the sheriff's sale therein.\"\nThe conclusions of law were that plaintiff was a proper party plaintiff in this action; that the taxes for 1932 on the undivided one-half mineral interest in the property involved were properly assessed, were delinquent and were subject to foreclosure; that the *162 service by publication notice in the tax foreclosure action was valid, and that the judgment foreclosing the tax lien on the property in question was valid.\nThe court then rendered the following conclusion of law:\n\"V.\n\"C.L. Dew, by reason of being a member of the Board of County Commissioners of Grant County, Kansas, during the pendency of Case No. 1655, and at the time of the sheriff's sale therein, was not an eligible purchaser, and the sale to him was void. The sale and sheriff's deed issued to C.L. Dew are hereby set aside.\"\nPursuant to its conclusions of fact and of law the court rendered judgment barring and excluding defendants from all right, title and interest in the property in controversy, and further decreed:\n\"... that the title of plaintiff to said real property be, and is hereby, quieted and confirmed except for the lien of the certain judgment heretofore rendered in case No. 1655 in this court, entitled Board of Commissioners of Grant County, Kansas vs. George S. Howell, et al., in the sum of $3.27 with interest at the rate of 10% per annum from June 9, 1942, and costs in the sum of $4.00; and that the plaintiff, upon payment of said judgment in said action be, and is hereby adjudged to be the owner of the real property heretofore described in fee simple, free of all rights, claims, or liens.\"\nDefendant Dew's motion for new trial, alleging erroneous rulings and conclusions of law by the court and that the judgment is contrary to law, being overruled, he has appealed, specifying as error the making of conclusion of law number V, above quoted, the rendition of judgment in favor of plaintiff, and in overruling his motion for new trial.\nAt the outset we are confronted with plaintiff's motion to dismiss the appeal, based on the following facts:\nThe journal entry of judgment recites that the Board of County Commissioners of Grant County, as such, appeared and participated in the trial. That body was adjudged to have a lien on the property involved. In other words, the earlier judgment, foreclosing the tax lien, was upheld — only the sale and deed to Dew being held void and set aside. He is the only defendant who appealed and his notice of appeal is directed only to plaintiff and its attorneys of record. Our appeal statute (G.S. 1949, 60-3306) provides that:\n\"... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record;...\"\nand plaintiff contends the Board of County Commissioners is therefore a necessary party to the appeal, the argument being that if Dew *163 should prevail the lien decreed in favor of the Board would necessarily be extinguished — thus its rights would be \"affected\" within the meaning of the statute, and we are cited to language contained in Grant v. Reed, 163 Kan. 105, 179 P.2d 945, where it was said:\n\"We have often held that where a judgment against several defendants is brought to this court for appellate review and it appears that a modification or reversal of the judgment will affect a defendant who has not been made a party the appeal will be dismissed.\" (p. 106.)\nThat isolated sentence, however, must be read in connection with other statements contained in the opinion and from them it is clear that our holding there is to be construed as meaning that notice of appeal must be served on those parties to the litigation to whose interest it is that the judgment of the lower court be upheld and who are interested in opposing the relief sought by the appellant. See Protzman v. Palmer, 155 Kan. 240, 124 P.2d 455; and In re Estate of Weaver, 170 Kan. 321, 224 P.2d 1004, where it was held:\n\"Where — as here — a judgment is brought to this court for appellate review and it appears that a modification or reversal of such judgment will adversely affect a litigant who has not been made a party the rule that the appeal must be dismissed is well established\" (citing cases). (p. 325.)\nNarrowed down to what actually is sought in this appeal it is clear that defendant Dew seeks to reverse the judgment which decreed the sale and deed to him to be void. If he should prevail the county still has the money representing the amount of delinquent taxes, interest and costs paid by him at the sheriff's sale, but its lien would be extinguished. If the judgment is affirmed the county still has its judgment lien subject to its being extinguished by payment to the county by plaintiff of the amount of delinquent taxes, interest and costs, as provided in the judgment. Thus it would seem that in either event the result, as far as the county is concerned, would be the same. The facts here are not to be confused with those in Cowley County Comm'rs v. Herbert, 163 Kan. 590, 185 P.2d 153, also relied on by plaintiff, where the attempted appeal was from an order sustaining a demurrer to a motion filed by the appellant to vacate and set aside a judgment, order of sale, confirmation thereof, and a sheriff's deed in a tax foreclosure proceeding, and where no notice of appeal was served on the Board of County Commissioners. Obviously, in that case it was to the interest of the county that the foreclosure judgment be upheld.\nWithout further discussion of the matter we hold it has not been *164 made clearly to appear that a modification or reversal of the judgment appealed from will adversely affect the interests of the county, and the motion to dismiss the appeal is therefore denied.\nThis brings us to the first of two principal questions involved in this case — is a county commissioner, in his private and individual capacity, an eligible purchaser at a sheriff's sale in a tax foreclosure action brought by the Board of County Commissioners of which he, during all stages of the proceedings, was a member? We are aware that in view of our ultimate holding an answer to this question is not necessarily essential to what we consider to be a correct disposition of this appeal. However, in the interest of sound public policy and for the benefit of bench and bar generally, we think the question should be answered.\nThe position of defendant (appellant) is that he joined with the other members of the Board under the appropriate statute (G.S. 1941 Supp. 79-2801 to 2809) in directing the county attorney to bring the tax foreclosure action against the owners of all real estate which had been sold at delinquent tax sales and which remained unredeemed for a period of three years after such sales; that the statute was mandatory; that after the action was instituted all subsequent proceedings were judicial in nature and he and other members of the Board had no further connection with the matter; that the sale here was conducted by the sheriff under competitive bidding, as provided by law; that he was the highest bidder; the sale to him was confirmed and deed issued; and that the whole proceeding, from beginning to end, was free from fraud and any wrongdoing.\nHe also directs our attention to the fact the legislature, by specific enactment, has declared who shall be disqualified to purchase at a judicial sale, and cites G.S. 1949, 60-3419, a portion of which reads:\n\"... No sheriff or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly purchase the same; and every purchase so made shall be considered fraudulent and void.\"\nIn support of the judgment of the lower court plaintiff contends the principle involved is one of public policy, and invokes the well-established and often repeated maxims — that no man can serve two masters; no agent can serve two principals; that a trustee or other person occupying a fiducial relationship cannot traffic in the trust estate; that every public official should scrupulously avoid placing himself in a position where his integrity and honesty can be drawn *165 into question — and cites a number of our early decisions which prohibit a county treasurer from purchasing, directly or indirectly, any land sold by him at a tax sale (Spicer v. Rowland, 39 Kan. 740, 18 P. 908; Sponable v. Woodhouse, 48 Kan. 173, 29 P. 394) as being indicative of this court's attitude on the general subject matter.\nIn examining this question we recognize that in directing the county attorney to bring the tax foreclosure action the Board of County Commissioners of Grant County was merely performing a ministerial duty imposed upon it by statute (G.S. 1941 Supp. 79-2801). We are also aware that by Ch. 362, Laws of 1945, the statute was amended so that the bringing of a tax foreclosure action where the real estate involved is a mineral interest in land which has been severed from the fee, as here, is within the discretion of the Board. However, that subsequent amendment is not necessarily persuasive in our decision on the merits of this case, all proceedings in which were had prior to its enactment.\nLittle benefit would result from a discussion of such precedents as are cited by counsel for either side, and neither have we found any precisely similar. What is similar in all, though, is the animating principle of fair and honest dealing on the part of those who, by virtue of their positions, have it within their power to acquire interests where they have a duty to perform in a manner inconsistent with such private interests.\nWe are convinced the conclusion of the lower court that defendant was not an eligible purchaser was eminently correct, if for no other reason than upon grounds of sound public policy. In so holding we do not mean to infer the transactions under review were fraudulent in fact. The law and ethics of a situation such as this should not rest upon the principle of actual fraud, but are founded on the theory that fraud in such cases is best prevented by removing all temptation. In other words, the rule rests on prevention of fraud and is based upon the moral obligation of everyone, and particularly a public official, to refrain from placing himself in a position which ordinarily creates or excites a conflict between self-interest and integrity. We think it is better that the danger and cause of the evil should be prohibited in all cases than that courts should be relied upon to apply the remedy by inquiring into the facts of a particular case to ascertain whether there has been fraud in fact. Fullness of price, absence of fraud, and fairness of purchase, are not sufficient to overcome this rule of policy. Entirely aside *166 from any element of actual fraud, the only adequate remedy is to declare one occupying the position of defendant an ineligible purchaser at such a sale. On this broad general principle the language of the late Justice Cardozo, when Chief Judge of the New York Court of Appeals, seems very appropriate:\n\"... Many forms of conduct permissible in a workaday world for those acting at arm's length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the `disintegrating erosion' of particular exceptions.... Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.\" (Meinhard v. Salmon, 249 N.Y. 458, 164 N.E. 545, 62 A.L.R. 1.)\nSo far as this particular phase of the case is concerned we agree with the trial court's conclusion — one in the position of defendant was an ineligible purchaser at the sheriff's sale.\nAnd this brings us to the all-important question relating to the finality of tax foreclosure proceedings, including the sale, confirmation thereof and sheriff's deed. Here the tax foreclosure judgment was rendered in June, sale was made in July, and the sale was confirmed and deed issued in August, all in the year 1942. This action to vacate and set aside was not commenced until January, 1946, about three and one-half years later. Defendant contends that even though it should be held he was not an eligible purchaser, nevertheless, plaintiff's action, not being commenced within six months after the confirmation of the sale, was brought too late, and he relies upon the provisions of G.S. 1941 Supp. 79-2804b (that being the statute in force at the time of the tax foreclosure proceedings in question), which read:\n\"Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of section 19 [79-2803] hereof, or any sale made under the provisions of section 20 [79-2804] hereof but every such action or proceeding, including those brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court. The provisions of this section shall apply to all judgments, orders of sale, and sales whether the purchaser at the foreclosure sale be the county or an individual.\"\n*167 Plaintiff's position is that defendant's title is dependent upon two things — first, a valid sale, and second, a valid deed; that here, there being no competent bidder, there was no sale, hence no deed; that the statute offers no protection to one claiming under a void sale or a void deed, and that they may be attacked at any time.\nThe precise question was not in issue when this case was previously before us (165 Kan. 642, 197 P.2d 925, supra). The question there was the correctness of an order overruling a demurrer to the verified amended petition which alleged there were in fact no delinquent taxes against the property which had been foreclosed. We affirmed the lower court, the basis of our decision being that under such circumstances, that is, where no taxes were delinquent, the court would acquire no jurisdiction over the property in the tax foreclosure action, the county would have nothing to sell, and therefore nothing would be conveyed to the purchaser. Putting it another way, the holding in that decision was that the tax foreclosure act (G.S. 1941 Supp. 79-2801 to 2809) simply had no application to property upon which all taxes levied were fully paid.\nHere, however, we have a different situation. The court found that taxes for the year 1932 were delinquent and that the property in question had been bid in by the county and carried on the delinquent tax sale records. The court therefore had jurisdiction to render its judgment in the tax foreclosure action in 1942. In other words, the provisions of the tax foreclosure act applied to those proceedings.\nDespite our holding that defendant was not an eligible purchaser at the sheriff's sale, and irrespective of whether the sale, confirmation thereof and the deed be considered void or merely voidable — we are of the opinion plaintiff's action was brought too late. Considering the confirmation of the sale to be an absolutely void \"judgment,\" it may be argued that under the provisions of G.S. 1949, 60-3009, it could be vacated at any time on motion of a party or any person affected thereby. On the other hand, reference is made to G.S. 1949, 60-303, which provides:\n\"Civil actions can only be commenced within the periods prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.\"\nUnder G.S. 1941 Supp. 79-2804b, every action, either legal or equitable, to open, vacate, modify or set aside any judgment rendered *168 for taxes, or any order of sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale, and the provisions of this section apply to all judgments, orders of sale and sales, whether the purchaser be the county or an individual. We think the clear intention of the statute is to supersede any and all other provisions of the code insofar as they may relate to actions to vacate, modify or set aside judgments, orders of sale and sales in tax foreclosure proceedings. The statute fixes a definite time within which such an action may be brought. The legislature had authority to make such a limitation and there was a good purpose in its doing so, namely, that purchasers at tax foreclosure sales would know a limitation of time within which the proceedings might be attacked. To hold otherwise would merely introduce confusion and unsettle every title growing out of a tax foreclosure action. Every title examiner would pause when confronted with a title derived from tax foreclosure proceedings, notwithstanding the statute (G.S. 1941 Supp. 79-2804) states the deed shall convey a fee simple title. Purchasers at tax foreclosure sales could never be certain whether they were purchasing fee simple titles or prospective lawsuits. We think the legislature clearly intended to remove, after the passage of the time prescribed by the statute, the uncertainty which has been conceded by everyone to exist with reference to tax titles.\nIn passing, we note that the statute under consideration as it now appears (G.S. 1949, 79-2804b) has been amended in that it now provides that such actions to vacate, modify or set aside, must be commenced within twelve months after the date of confirmation of sale, and that other language in the section, as amended, is even a stronger indication of the legislative intent to place a stamp of finality on tax foreclosure proceedings after the expiration of the time prescribed.\nSee also Blair v. Pooler, 160 Kan. 201, 204, 160 P.2d 672; Sheridan County Comm'rs v. Acre, 160 Kan. 278, 287, 160 P.2d 250; and Board of County Comm'rs v. Groomer, 166 Kan. 593, 598, 203 P.2d 237.\nIn conclusion, and by way of summary — we hold that on account of the facts as hereinbefore related, defendant Dew was an ineligible purchaser at the sheriff's sale. However, taxes lawfully levied for the year 1932 being delinquent, the provisions of the tax *169 foreclosure act (G.S. 1941 Supp. 79-2801 to 2809) applied to the entire foreclosure proceeding. Included in the act is 2804b, the provisions of which have been discussed in detail. The instant action to vacate and set aside, not being commenced within six months from the date of confirmation of the sale, was brought too late.\nIt therefore follows that the judgment of the lower court is reversed with directions to enter judgment in favor of defendant Dew.\nSMITH, J., dissents from that part of paragraph 2 of the syllabus and the corresponding portion of the opinion which hold that the action was brought too late.\n", "ocr": false, "opinion_id": 1190725 }, { "author_str": "Price", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nThe opinion of the court was delivered by\nPrice, J.:\nThis was an action to vacate and set aside a judgment and all subsequent proceedings had in a tax foreclosure action. From a judgment setting aside the sheriff’s sale and deed issued pursuant thereto, and quieting plaintiff’s title to the property in question upon its compliance with the judgment, the defendant purchaser has appealed.\nThis is the second appearance in this court of litigation over the validity of the tax foreclosure judgment and sale in controversy. The first appeal was from an order overruling a demurrer to plaintiff’s (appellee’s) verified amended petition. Our decision affirming that ruling is found in Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P. 2d 925. In that appeal two cases were consolidated. The instant appeal is in what was case No. 37,263, in the former appeal, and involves only the sale to C. L. Dew, a member of the Board of County Commissioners. In the interest of brevity the factual background of the matter as alleged in the verified amended petition will not here be set out, but the summary of those allegations, beginning at the bottom of page 643 and ending with the first paragraph commencing on page 645 of our former opinion, is by reference incorporated herein.\nThe parties will be refererd to as in the court below.\nDefendant Dew’s answer admits that at all times during the tax foreclosure action he was a duly elected and acting member of the Board of County Commissioners of Grant County; that he, together with other members of the Board, authorized and directed the county attorney to institute a tax foreclosure suit, and further authorized the employment of an outside attorney to assist in such procedure. He specifically denies he had prior knowledge that no tax lien existed against the property in question, and further alleges that in truth and in fact a valid tax lien at such time did exist. The answer further denies that he unlawfully, intentionally, wrongfully or fraudulently undertook to deprive plaintiff of the property, or that he practiced any fraud upon plaintiff or upon the court to procure a decree of foreclosure in the action, but, on the contrary, alleges that he acted in good faith in an effort to discharge his duties as a public officer, and that all of his acts, both individually and *161as a public officer, were carried out and discharged in good faith. The answer then admits that he bid in the property in question at the sheriffs sale, as alleged by the plaintiff, but alleges he was interested in the property by reason of the fact he was the owner in fee of the surface and one-half of the mineral rights; that he bid in such property at a regularly conducted sheriff’s sale, under competitive bidding; that he was the highest bidder therefor, and that all proceedings in connection with such foreclosure action, from its commencement down to and including the sale to him, were regular and in conformity with law, and were carried out in good faith by defendant and all parties concerned. The answer further alleges that plaintiff’s cause of action, if it has any, is barred by the statute of limitations.\nThe cause proceeded to trial by the court. Oral testimony, if any was introduced, is not abstracted. The court made conclusions of fact and of law. Included in the former is a finding that taxes in the amount of $1.77, for the year 1932, had become delinquent when the property in question was standing in the name of one Long, plaintiff’s grantor; that it had been bid in by Grant County and was entered on the delinquent tax sale records, and there carried until 1942, when it was foreclosed; that plaintiff was served by publication notice only, but, as a foreign corporation, could have been served through the secretary of state; that judgment was rendered June 9, 1942, finding the taxes on the undivided one-half mineral interest in question to be delinquent and unpaid in the amount of $3.27, and foreclosure of such tax lien was ordered. The court then made a finding that the property in question was sold by the sheriff of Grant County to defendant Dew for the amount of $10.00, and that such sale was confirmed and sheriff’s deed issued to him.\nThe court further found:\n“That C. L. Dew, the purchaser of said mineral interest in Case No. 1655, was duly elected as a member of the Board of County Commissioners of Grant County, Kansas, and qualified for such office in 1941, and was a member of said Board at the time the proceedings were instituted in Case No. 1655, at the time judgment was rendered, and at the time of the sheriff’s sale therein.”\nThe conclusions of law were that plaintiff was a proper party plaintiff in this action; that the taxes for 1932 on the undivided one-half mineral interest in the property involved were properly assessed, were delinquent and were subject to foreclosure; that the *162service by publication notice in the tax foreclosure action was valid, and that the judgment foreclosing the tax lien on the property in question was valid.\nThe court then rendered the following conclusion of law:\n“V.\n“C. L. Dew, by reason of being a member of the Board of County Commissioners of Grant County, Kansasj during the pendency of Case No. 1655, and at the time of the sheriff’s sale therein, was not an eligible purchaser, and tire sale to him was void. The sale and sheriff’s deed issued to C. L. Dew are hereby set aside.”\nPursuant to its conclusions of fact and of law the court rendered judgment barring and excluding defendants from all right, title and interest in the property in controversy, and further decreed:\n“. . . that the title of plaintiff to said real property be, and is hereby, quieted and confinned except for the lien of the certain judgment heretofore rendered in case No. 1655 in this court, entitled Board of Commissioners of Grant County, Kansas vs. George S. Howell, et al., in the sum of $3.27 with interest at the rate of 10% per annum from June 9, 1942, and costs in the sum of $4.00; and that the plaintiff, upon payment of said judgment in said action be, and is hereby adjudged to be the owner of the real property heretofore described in fee simple, free of all rights, claims, or liens.”\nDefendant Dew’s motion for new trial, alleging erroneous rulings and conclusions of law by the court and that the judgment is contrary to law, being overruled, he has appealed, specifying as error the making of conclusion of law number V, above quoted, the rendition of judgment in favor of plaintiff, and in overruling his motion for new trial.\nAt the outset we are confronted with plaintiff’s motion to dismiss the appeal, based on the following facts:\nThe journal entry of judgment recites that the Board of County Commissioners of Grant County, as such, appeared and participated in the trial. That body was adjudged to have a lien' on the property involved. In other words, the earlier judgment, foreclosing the tax lien, was upheld — only the sale and deed to Dew being held void and set aside. He is the only defendant who appealed and his notice of appeal is directed only to plaintiff and its attorneys of record. Our appeal statute (G. S. 1949, 60-3306) provides that:\n“. . . A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal, and who appeared and took part in the trial, or their attorneys of record; . . .”\nand plaintiff contends the Board of County Commissioners is therefore a necessary party to the appeal, the argument being that if Dew *163should prevail the lien decreed in favor of the Board would necessarily be extinguished — thus its rights would be “affected” within the meaning of the statute, and we are cited to language contained in Grant v. Reed, 163 Kan. 105, 179 P. 2d 945, where it was said:\n“We have often held that where a judgment against several defendants is brought to this court for appellate review and it appears that a modification or reversal of the judgment will affect a defendant who has not been made a party the appeal will be dismissed.” (p. 106.)\nThat isolated sentence, however, must be read in connection with other statements contained in the opinion and from them it is clear that our holding there is to be construed as meaning that notice of appeal must be served on those parties to the litigation to whose interest it is that the judgment of the lower court be upheld and who are interested in opposing the relief sought by the appellant. See Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455; and In re Estate of Weaver, 170 Kan. 321, 224 P. 2d 1004, where it was held:\n“Where — as here — a judgment is brought to this court for appellate review and it appears that a modification or reversal of such judgment will adversely affect a litigant who has not been made a party the rule that the appeal must be dismissed is well established” (citing cases), (p. 325.)\nNarrowed down to what actually is sought in this appeal it is clear that defendant Dew seeks to reverse the judgment which decreed the sale and deed to him to be void. If he should prevail the county still has the money representing the amount of delinquent taxes, interest and costs paid by him at the sheriff’s sale, but its lien would be extinquished. If the judgment is affirmed the county still has its judgment lien subject to its being extinguished by payment to the county by plaintiff of the amount of delinquent taxes, interest and costs, as provided in the judgment. Thus it would seem that in either event the result, as far as the county is concerned, would be the same. The facts here are not to be confused with those in Cowley County Comm'rs v. Herbert, 163 Kan. 590, 185 P. 2d 153, also relied on by plaintiff, where the attempted appeal was from an order sustaining a demurrer to a motion filed by the appellant to vacate and set aside a judgment, order of sale, confirmation thereof, and a sheriff’s deed in a tax foreclosure proceeding, and where no notice of appeal was served on the Board of County Commissioners. Obviously, in that case it was to the interest of the county that the foreclosure judgment be upheld.\nWithout further discussion of the matter we hold it has not been *164made clearly to appear that a modification or reversal of the judgment appealed from will adversely affect the interests of the county, and the motion to dismiss the appeal is therefore denied.\nThis brings us to the first of two principal questions involved in this case — is a county commissioner, in his private and individual capacity, an eligible purchaser at a sheriff’s sale in a tax foreclosure action brought by the Board of County Commissioners of which he, during all stages of the proceedings, was a member? We are aware that in view of our ultimate holding an answer to this question is not necessarily essential to what we consider to be a correct disposition of this appeal. However, in the interest of sound public policy and for the benefit of bench and bar generally, we think the question should be answered.\nThe position of defendant (appellant) is that he joined with the other members of the Board under the appropriate statute (G) S. 1941 Supp. 79-2801 to 2809) in directing the county attorney to bring the tax foreclosure action against the owners of all real estate which had been sold at delinquent tax sales and which remained unredeemed for a period of three years after such sales; that the statute was mandatory; that after the action was instituted all subsequent proceedings were judicial in nature and he and other members of the Board had no further connection with the matter; that the sale here was conducted by the sheriff under competitive bidding, as provided by law; that he was the highest bidder; the sale to him was confirmed and deed issued; and that the whole proceeding, from beginning to end, was free from fraud and any wrongdoing.\nHe also directs our attention to the fact the legislature, by specific enactment, has declared who shall be disqualified to purchase at a judicial sale, and cites G. S. 1949, 60-3419, a portion of which reads;\n“. . . No sheriff or other officer making the sale of property, either personal or real, nor any appraiser of such property, shall either directly or indirectly purchase the same; and every purchase so made shall be considered fraudulent and void.”\nIn support of the judgment of the lower court plaintiff contends the principle involved is one of public policy, and invokes the well-established and often repeated maxims — that no man can serve two masters; no agent can serve two principals; that a trustee or other person occupying a fiducial relationship cannot traffic in the trust estate; that every public official should scrupulously avoid placing himself in a position where his integrity and honesty can be drawn *165into question — and cites a number of our early decisions which prohibit a county treasurer from purchasing, directly or indirectly, any land sold by him at a tax sale (Spicer v. Rowland, 39 Kan. 740, 18 Pac. 908; Sponable v. Woodhouse, 48 Kan. 173, 29 Pac. 394) as being indicative of this court’s attitude on the general subject matter.\nIn examining this question we recognize that in directing the county attorney to bring the tax foreclosure action the Board of County Commissioners of Grant County was merely performing a ministerial duty imposed upon it by statute (G. S. 1941 Supp. 79-2801). We are also aware that by Ch. 362, Laws of 1945, the statute was amended so that the bringing of a tax foreclosure action where the real estate involved is a mineral interest in land which has been severed from the fee, as here, is within the discretion of the Board. However, that subsequent amendment is not necessarily persuasive in our decision on the merits of this case, all proceedings in which were had prior to its enactment.\nLittle benefit would result from a discussion of such precedents as are cited by counsel for either side, and neither have we found any precisely similar. What is similar in all, though, is the animating principle of fair and honest dealing on the part of those who, by virtue of their positions, have it within their power to acquire interests where they have a duty to perform in a manner inconsistent with such private interests.\nWe are convinced the conclusion of the lower court that defendant was not an eligible purchaser was eminently correct, if for no other reason than upon grounds of sound public policy. In so holding we do not mean to infer the transactions under review were fraudulent in fact. The law and ethics of a situation such as this should not rest upon the principle of actual fraud, but are founded on the theory that fraud in such cases is best prevented by removing all temptation. In other words, the rule rests on prevention of fraud and is based upon the moral obligation of everyone, and particularly a public official, to refrain from placing himself in a position which ordinarily creates or excites a conflict between self-interest and integrity. We think it is better that the danger and cause of the evil should be prohibited in all cases than that courts should be relied upon to apply the remedy by inquiring into the facts of a particular case to ascertain whether there has been fraud in fact. Fullness of price, absence of fraud, and fairness of purchase, are not sufficient to overcome this rule of policy. Entirely aside *166from any element of actual fraud, the only adequate remedy is .to declare one occupying the position of defendant an ineligible purchaser at such a sale. On this broad general principle the language of the late Justice Cardozo, when Chief Judge of the New York Court of Appeals, seems very appropriate:\n“. . . Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to tiróse bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions. . . . Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.” (Meinhard v. Salmon, 249 N. Y. 458, 164 N. E. 545, 62 A. L. R. 1.)\nSo far as this particular phase of the case is concerned we agree with the trial court’s conclusion — one in the position of defendant was an ineligible purchaser at the sheriff’s sale.\nAnd this brings us to the all-important question relating to the finality of tax foreclosure proceedings, including the sale, confirmation thereof and sheriff’s deed. Here the tax foreclosure judgment was rendered in June, sale was made in July, and the sale was confirmed and deed issued in August, all in the year 1942. This action to vacate and set aside was not commenced until January, 1946, about three and one-half years later. Defendant contends that even though it should be held he was not an eligible purchaser, nevertheless, plaintiff’s action, not being commenced within six months after the confirmation of the sale, was brought too late, and he relies upon the provisions of G. S. 1941 Supp. 79-2804b (that being the statute in force at the time of the tax foreclosure proceedings in question), which read:\n“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of section 19 [79-2803] hereof, or any sale made under the provisions of section 20 [79-2804] hereof but every such action or proceeding, including those brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of the sale of the real estate, which was affected by such judgment, order of sale or sale, was confirmed by the court. The provisions of this section shall apply to all judgments, orders of sale, and sales whether the purchaser at the foreclosure sale be the county or an individual.”\n*167Plaintiff’s position is that defendant’s title is dependent upon two things — first, a valid sale, and second, a valid deed; that here, there being no competent bidder, there was no sale, hence no deed; that the statute offers no protection to one claiming under a void sale or a void deed, and that they may be attacked at any time.\nThe precise question was not in issue when this case was previously before us (165 Kan. 642, 197 P. 2d 925, supra). The question there was the correctness of an order overruling a demurrer to the verified amended petition which alleged there were in fact no delinquent taxes against the property which had been foreclosed. We affirmed the lower court, the basis of our decision being that under such circumstances, that is, where no taxes were delinquent, the court would acquire no jurisdiction over the property in the tax foreclosure action, the county would have nothing to sell, and therefore nothing would be conveyed to the purchaser. Putting it another way, the holding in that decision was that the tax foreclosure act (G. S. 1941 Supp. 79-2801 to 2809) simply had no application to property upon which all taxes levied were fully paid.\nHere, however, we have a different situation. The court found that taxes for the year 1932 were delinquent and that the property in question had been bid in by the county and carried on the delinquent tax sale records. The court therefore had jurisdiction to render its judgment in the tax foreclosure action in 1942. In other words, the provisions of the tax foreclosure act applied to those proceedings.\nDespite our holding that defendant was not an eligible purchaser at the sheriff’s sale, and irrespective of whether the sale, confirmation thereof and the deed be considered void or merely voidable — we are of the opinion plaintifFs action was brought too late. Considering the confirmation of the sale to be an absolutely void “judgment,” it may be argued that under the provisions of G. S. 1949, 60-3009, it could be vacated at any time on motion of a party or any person affected thereby. On the other hand, reference is made to G. S. 1949, 60-303, which provides:\n“Civil actions can only be commenced within' the periods -prescribed in this article, after the cause of action shall have accrued; but where, in special cases, a different limitation is prescribed by statute, the action shall be governed by such limitation.”\nUnder G. S. 1941 Supp. 79-2804b, every action, either legal or equitable, to open, vacate, modify or set aside ány judgment ren*168dered for taxes, or any order of sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale, and the provisions of this section apply to all judgments, orders of sale and sales, whether the purchaser be the county or an individual. We think the clear intention of the statute is to supersede any and all other provisions of the code insofar as they may relate to actions to vacate, modify or set aside judgments, orders of sale and sales in tax foreclosure proceedings. The statute fixes a definite time within which such an action may be brought. The legislature had authority to make such a limitation and there was a good purpose in its doing so, namely, that purchasers at tax foreclosure sales would know a limitation of time within which the proceedings might be attacked. To hold otherwise would merely introduce confusion and unsettle every title growing out of a tax foreclosure action. Every title examiner would pause when confronted with a title derived from tax foreclosure proceedings, notwithstanding the statute (G. S. 1941 Supp. 79-2804) states the deed shall convey a fee simple title. Purchasers at tax foreclosure sales could never be certain whether they were purchasing fee simple titles or prospective lawsuits. We think the legislature clearly intended to remove, after the passage of the time prescribed by the statute, the uncertainty which has been conceded by everyone to exist with reference to tax titles.\nIn passing, we note that the statute under consideration as it now appears (G. S. 1949, 79-2804b) has been amended in that it now provides that such actions to vacate, modify or set aside, must be commenced within twelve months after the date of confirmation of sale, and that other language in the section, as amended, is even a stronger indication of the legislative intent to place a stamp of finality on tax foreclosure proceedings after the expiration of the time prescribed.\nSee also Blair v. Pooler, 160 Kan. 201, 204, 160 P. 2d 672; Sheridan County Comm’rs v. Acre, 160 Kan. 278, 287, 160 P 2d 250; and Board of County Comm’rs v. Groomer, 166 Kan. 593, 598, 203 P. 2d 237.\nIn conclusion, and by way of summary — we hold that on account of the facts as hereinbefore related, defendant Dew was an ineligible purchaser at the sheriffs sale. However, taxes lawfully levied for the year 1932 being delinquent, the provisions of the tax *169foreclosure act (G. S. 1941 Supp. 79-2801 to 2809) applied to the entire foreclosure proceeding. Included in the act is 2804b, the provisions of which have been discussed in detail. The instant action to vacate and set aside, not being commenced within six months from the date of confirmation of the sale, was brought too late.\nIt therefore follows that the judgment of the lower court is reversed with directions to enter judgment in favor of defendant Dew.\n", "ocr": false, "opinion_id": 9553587 }, { "author_str": "Smith", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSmith, J.,\ndissents from that part of paragraph 2 of the syllabus and the corresponding portion of the opinion which hold that the action was brought too late.\n", "ocr": false, "opinion_id": 9553588 } ]
Supreme Court of Kansas
Supreme Court of Kansas
S
Kansas, KS
1,065,377
Presiding Judge Alan E. Highers
2003-10-14
false
brian-candy-chadwick-v-chad-spence
null
Brian & Candy Chadwick v. Chad Spence
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/041/Chadwi.pdf", "author_id": 8275, "opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT JACKSON\n OCTOBER 14, 2003 Session\n\n BRIAN & CANDY CHADWICK v. CHAD SPENCE\n\n Direct Appeal from the Circuit Court for Shelby County\n No. CT-007720-01 Kay Robilio, Judge\n\n\n\n No. W2003-00931-COA-R3-CV - Filed February 11, 2004\n\n\nThis is an action for damages arising from the purchase of a residence. Purchaser sued seller for\nfraudulent misrepresentation and breach of contract, alleging that seller failed to disclose existing\nstucco and water damage, as well as termite infestation. Following a bench trial, the lower court\nentered judgment in favor of Defendant. For the following reasons, we affirm.\n\n\n Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed\n\nALAN E. HIGHERS, J., delivered the opinion of the court, in which DAVID R. FARMER , J., and HOLLY\nM. KIRBY , J., joined.\n\nKevin A. Snider, Germantown, TN, for Appellants\n\nHarold D. Mangrum, Memphis, TN, for Appellee\n\n OPINION\n\n Facts and Procedural History\n\n This case arises from the sale of a stucco house located at 2514 Brotherwood Cove in\nCollierville, Tennessee. The initial owner, Chad Spence (“Defendant”), moved out of the house,\nleaving it vacant, in April of 2000. On April 14, 2000, Defendant hired Sue Reeves (“Ms. Reeves”),\na realtor with Century 21 River Oaks, to assist him in selling the house. Due to the well-documented\nproblems sometimes associated with stucco homes, Ms. Reeves arranged for Steve Anderson (“Mr.\nAnderson”), a home inspector, to examine the house on May 11, 2000. After conducting his\nexamination, Mr. Anderson concluded that the stucco on Defendant’s house was not installed to\ncertification, resulting in some water damage to the walls. Mr. Anderson then drafted a report that\ncontained these observations, as well as an estimate of $34,000 to bring the house up to certification,\nand gave the report to Ms. Reeves. A few days later, on May 14, a termite inspector from Womack\nExterminators was brought in to examine the house for evidence of termite activity. The inspector,\n\fJames Hunt, found nothing to indicate the presence of termites and drafted a termite letter to that\neffect.\n\n Later that summer, a potential buyer made an offer on the house, contingent on Defendant\nbringing the stucco up to certification. In response, Ms. Reeves procured the services of a stucco\nspecialist, Lee Gallagher (“Mr. Gallagher”), to inspect the house and provide an estimate for the\nrepairs necessary to achieve certification. Mr. Gallagher inspected the residence on August 10, 2000\nand estimated that it would cost $32,735 to conduct the necessary repairs. After hearing this total,\nDefendant told Ms. Reeves that he was not prepared to fund such repairs, and he instructed her to\ncounter with an “as is” offer. The prospective buyer declined the counteroffer and the house\nremained on the market. Ms. Reeves was then discharged by Defendant after these negotiations were\nunsuccessful.\n\n Following the discharge of Ms. Reeves, Brian Chadwick (hereinafter “Mr. Chadwick” or,\ncollectively with his wife, “Plaintiffs”) learned of the Defendant’s residence through a mutual friend\nof the two parties. Mr. Chadwick visited the house several times and had discussions regarding the\nproperty with Defendant on some of these occasions. Defendant maintains that these negotiations\ntook place in mid-August of 2000, while Mr. Chadwick argues that it was nearly a month later. It\nis undisputed that the parties signed a contract of sale for the house, drafted by Mr. Chadwick’s\nmortgage company, dated August 23, 2000, with no real estate agent involved in the contract.\nHowever, the parties disagree as to when the contract was actually signed, notwithstanding the\neffective date of the contract. Defendant contends that the contract was signed on August 23, while\nMr. Chadwick maintains that the contract was actually executed in September and backdated to\nAugust 23. This disagreement over the date of signing is inextricably tied to a related issue: the role\nplayed in these events by a second realtor hired by Defendant, after the effective date of the contract.\nThe parties agree that, on September 7, 2000, Defendant hired Chet Whitsitt (“Mr. Whitsitt”) of\nCrye-Leike Realtors to list the property at issue. Defendant argues that he procured Mr. Whitsitt’s\nservice after the date the contract was actually signed and that he did so because Mr. Chadwick\nexpressed doubt as to his ability to qualify for a mortgage and close on the property. Mr. Chadwick,\nhowever, maintains that Mr. Whitsitt was involved in these proceedings prior to the actual signing\nof the contract, which was in late September, because Defendant had no contract on his house as of\nearly September and was, naturally, in need of a realtor’s services. Mr. Chadwick argues that the\nparties reached an agreement without the aid of Mr. Whitsitt, who gracefully agreed to step out of\nthe way so that the parties would not be charged a commission. Mr. Chadwick further contends that\nthe contract was backdated, to a date before Mr. Whitsitt’s involvement, as a precaution against any\nlegal difficulties that might arise from the absence of a commission in the contract.\n\n The Plaintiffs argue that, in the course of evaluating the house prior to signing the contract,\nthey relied upon a flyer prepared by Mr. Whitsitt on behalf of Defendant. The flyer boldly stated that\nthe house was “stucco inspected” and that there was a current termite contract on the house with\nWomack Exterminators. Mr. Chadwick maintains that these representations led him to believe that\nthe house was stucco certified and without termites. The record indicates that the house was, indeed,\nstucco inspected, though it was not stucco certified. It is also undisputed that there was no termite\n\n\n -2-\n\fcontract on the house, only a termite letter by Womack Exterminators stating that the house showed\nno visible signs of termite damage as of May 14, 2000. Defendant argues that any mistakes in the\nflyer are irrelevant, because the Plaintiffs could not have relied upon them in signing the contract.\nThis is because the contract was signed on August 23, more than two weeks prior to the creation of\nthe flyer.\n\n The Plaintiffs did not close on the house until December 29, 2000. The record shows,\nhowever, that Defendant allowed the Plaintiffs to move into the residence roughly a month before\nclosing. During that time, the Plaintiffs had unfettered access to the entire house and the opportunity\nto have a professional inspection of the residence for any faults. The Plaintiffs chose not to have an\ninspection performed. After the closing was completed, but before the Plaintiffs’ funds were\ndisbursed, a second termite letter was obtained that declared the house free of visible termite activity.\n\n In April of 2001, the Plaintiffs experienced an explosion of termite activity in their residence.\nThis termite infestation allegedly prompted the Plaintiffs to investigate the overall condition of the\nhouse. It was only at this time, according to the Plaintiffs, that they learned of the stucco and water\ndamage to the house. On December 28, 2001, the Plaintiffs filed suit against Defendant, alleging\nmisrepresentation and breach of contract. Specifically, the Plaintiffs alleged that: Defendant failed\nto provide them with a property disclosure statement as required by the Tennessee Residential\nProperty Disclosure Act; Defendant withheld material facts by failing to disclose the existence of\nthe Gallagher report; and Defendant affirmatively misrepresented the condition of the house both\nin oral statements and in the flyer prepared by Mr. Whitsitt. Defendant responded that: he discussed\nthe problems listed in the Gallagher report with Mr. Chadwick, who said he would attend to the\nproblems after the sale; the Plaintiffs never relied upon the flyer prepared by Mr. Whitsitt; the\nPlaintiffs themselves had the contract drafted with the “as is” clause, without any representations\nregarding the condition of the property; and the selling price of the house was lowered to account\nfor the stucco and water damage the Plaintiffs would be inheriting. After conducting a bench trial\nfrom January 13-15, 2003, the trial court found that Defendant had neither misrepresented the\ncondition of the property nor breached the parties’ contract of sale. The Plaintiffs then timely filed\nthe instant appeal challenging the judgment of the trial court.\n\n Issues\n\n The Plaintiffs raise the following issues for our consideration:\n\n I. Whether the trial court erred in failing to find that the Defendant violated the\n Tennessee Residential Property Disclosure Act.\n II. Whether the trial court erred in failing to find that the Defendant fraudulently\n misrepresented the true condition of the property at issue and/or breached the parties’\n contract of sale for the property.\n III. Whether the trial court erred in finding that the Plaintiffs failed to demonstrate\n ascertainable damages.\n\n\n\n -3-\n\f Standard of Review\n\n This case was tried by the lower court sitting without a jury. We, therefore, review the trial\ncourt’s conclusions of law under a de novo standard, with no presumption of correctness. Kendrick\nv. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002). With respect to the trial court’s findings of fact, our\nreview is de novo upon the record, with a presumption of correctness unless the evidence\npreponderates otherwise. Tenn. R. App. P. 13(d); Kendrick, 90 S.W.3d at 569.\n\n Law and Analysis\n\n I. Tennessee Residential Property Disclosure Act\n\n We will first address the Plaintiffs’ contention that the lower court erred in failing to find that\nthe Defendant violated the Tennessee Residential Property Disclosure Act (“TRPDA”). The\nTRPDA, enumerated in Tenn. Code Ann. § 66-5-201 to -210 (2003), requires an owner of residential\nproperty to provide a property disclosure statement to a purchaser. Tenn. Code Ann. § 66-5-202(1).\nThis disclaimer statement must include notice of any material defects in the property of which the\nowner is aware. Id. The TRPDA does allow an owner to issue, in the alternative, a disclaimer\nstatement stating that the owner makes no representations or warranties as to the condition of the\nproperty. Tenn. Code Ann. § 66-5-202(2). However, a disclaimer statement is allowed only where\nthe purchaser waives the disclosure statement described above. Id.\n\n In the present case, it is undisputed that the Defendant failed to provide the Plaintiffs with\na residential property disclosure statement. It is likewise undisputed that the Plaintiffs never waived\ntheir right to such a disclosure statement. Nevertheless, the trial court did not err when it failed to\nspecifically address this violation of the TRPDA. This is because such a violation creates no\nindependent cause of action on behalf of the purchaser. Tenn. Code Ann. § 66-5-208(b). Instead,\nan owner who fails to provide a disclosure statement is simply “subject to any other cause of action\navailable in law or equity against an owner for misrepresentation or failure to disclose material facts\nregarding the subject property.” Id. The Defendant’s violation of the TRPDA in the instant case is,\ntherefore, subsumed within the overall claims of misrepresentation and breach of contract.\nAccordingly, when the trial court disposed of those two causes of action in its order, it necessarily\ndisposed of the TRPDA violation, as well. The lower court had no duty to separately address the\nTRPDA violation as part of its order.\n\n II. Fraudulent Misrepresentation and Breach of Contract\n\n We will next consider the Plaintiffs’ assertion that the trial court erred in failing to find that\nthe Defendant fraudulently misrepresented the true condition of the property at issue and/or breached\nthe parties’ contract of sale for the property.\n\n\n\n\n -4-\n\f A. Fraudulent Misrepresentation\n\n The Plaintiffs allege that the Defendant misrepresented the true condition of the property by\nfailing to disclose the water and stucco damage, as well as possible termite damage, that was\nrevealed in expert reports prior to the sale. In order for this alleged misrepresentation to constitute\nfraud, the misrepresentation: “(1) must have been a representation as to an existing fact; (2) must\nhave been false; (3) must have been relied upon; and (4) must have been so material that it\ndetermined the conduct of the parties seeking relief.” Atkins v. Kirkpatrick, 823 S.W.2d 547, 552\n(Tenn. Ct. App. 1991) (citing Dozier v. Hawthorne Dev. Co., 262 S.W.2d 705, 709 (Tenn. Ct. App.\n1953)). At trial, the parties hotly contested whether Defendant disclosed material information on\nthe condition of the property, such as the $32,750 stucco repair estimate given in the Gallagher report\nin early August of 2000. They also contested whether the Plaintiffs relied upon the representations\nin the Whitsitt flyer that the property was “stucco inspected” and under a current termite contract.\n\n Due to this conflict over the facts underlying the case, the trial court’s ruling is necessarily\npredicated upon its assessment of the credibility of testimony presented at trial. Regarding a trial\ncourt’s assessment of credibility, this Court has held that:\n\n When the resolution of the issues in a case depends upon the truthfulness of\n witnesses, the trial judge, who has the opportunity to observe the witnesses in their\n manner and demeanor while testifying, is in a far better position than this Court to\n decide those issues. See McCaleb v. Saturn Corp., 910 S.W.2d 412, 415 (Tenn.\n 1995); Whitaker v. Whitaker, 957 S.W.2d 834, 837 (Tenn. Ct. App. 1997). The\n weight, faith, and credit to be given to any witness’s testimony lies in the first\n instance with the trier of fact, and the credibility accorded will be given great weight\n by the appellate court. See id., In re Estate of Walton v. Young, 950 S.W.2d 956, 959\n (Tenn. 1997).\n\nMach. Sales Co., Inc. v. Diamondcut Forestry Prod., LLC, 102 S.W.3d 638, 643 (Tenn. Ct. App.\n2002). The trial court was presented with credible testimony to support a finding that the Plaintiffs\nwere not only provided sufficient notice of the property’s condition by Defendant, but also afforded\nample opportunity to have their own inspection performed. In light of the importance of witness\ncredibility in this case, and our deference to the trial court’s assessment thereof, we cannot say that\nthe lower court committed error when it found that the Plaintiffs failed to establish their claim of\nfraudulent misrepresentation.\n\n B. Breach of Contract\n\n In their brief, the Plaintiffs allege that the trial court erred in failing to find that the Defendant\nbreached the parties’ contract of sale for the property at issue. However, the Plaintiffs then fail to\nprovide any specific argument or caselaw in support of this contention. Instead, they aver that “these\nsame misrepresentations and/or nondisclosures [that allegedly give rise to the fraudulent\n\n\n\n -5-\n\fmisrepresentation claim] are a breach of the parties agreement . . . .” Despite this paucity of support,\nwe will, nevertheless, explore the Plaintiffs’ claim.\n\n This Court has held that “[t]he essential elements of any breach of contract claim include (1)\nthe existence of an enforceable contract; (2) nonperformance amounting to a breach of the contract,\nand (3) damages caused by the breach of the contract.” Craft v. Forklift Sys., Inc., No. M2002-\n00040-COA-R3-CV, 2003 WL 21642767, at *2 (Tenn. Ct. App. July 14, 2003) (quoting Custom\nBuilt Homes v. G.S. Hinsen Co., Inc., 1998 W.L 960287, at *3 (Tenn. Ct. App. Feb. 2, 1998) (citing\nLifeCare Ctrs. of Am., Inc. v. Charles Town Assocs. Ltd. P’ship, LPIMC, Inc., 79 F.3d 496, 514 (6th\nCir. 1996))). In the instant case, it is undisputed that a contract of sale for the property exists. The\nissue, then, is whether Defendant committed some act that qualifies as nonperformance amounting\nto a breach of the contract. The Plaintiffs argument is grounded upon the theory that Defendant’s\nalleged failure to disclose the existing damage to the property somehow violates the contract of sale.\nThis theory necessarily implies that the contract contains some guarantee regarding the condition of\nthe property at the time of the sale. The plain language of the contract, however, does not contain\nany such provision. To the contrary, the contract states that the property “shall be conveyed ‘AS IS’\nwith no warranty whatsoever as to Property condition.” Such a clause is valid and enforceable,\nabsent a showing that the contract was obtained by some form of fraudulent misrepresentation or\nconcealment. See, e.g., Edmondson v. Coates, No. 01-A-01-9109-CH000324, 1992 WL 108717, at\n*8 (Tenn. Ct. App. May 22, 1992) (citing Simmons v. Evans, 206 S.W.2d 295, 296 (Tenn. 1947)).\nAs the Plaintiffs were unsuccessful on their claims of misrepresentation and concealment, it\ninescapably follows that the “as is” clause of the contract is valid and enforceable. Therefore, the\nrisk of loss occasioned by virtue of the condition of the property is shifted to the Plaintiffs, whose\nclaim for breach of contract must fail. See Memphis Zane May Assocs. v. Prudential Ins. Co. of\nAmerica, No. 02A01-9208-CH-00233, 1994 WL 577449, at *3 (Tenn. Ct. App. Oct. 21, 1994)\n(citing Atkins v. Kirkpatrick, 823 S.W.2d 547, 554 (Tenn. Ct. App. 1991)).\n Our holding on the Plaintiffs’ claims of misrepresentation and breach of contract preclude\nan award of damages. As such, we decline to address the Plaintiffs’ final issue on appeal, concerning\nthe ascertainment of damages.\n\n Conclusion\n\n For the foregoing reasons, we affirm the judgment of the lower court. Costs of this appeal\nare taxed to the Appellants, Brian and Candy Chadwick, and their surety, for which execution may\nissue if necessary.\n\n\n\n\n ___________________________________\n ALAN E. HIGHERS, JUDGE\n\n\n -6-\n\f", "ocr": false, "opinion_id": 1065377 } ]
Court of Appeals of Tennessee
Court of Appeals of Tennessee
SA
Tennessee, TN
2,662,014
Magistrate Judge Alan Kay
2012-08-10
false
wright-v-government-of-the-district-of-columbia
Wright
Wright v. Government of the District of Columbia
Adrienne WRIGHT, Et Al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant
Elizabeth T. Jester, James E. Williams, Jester & Williams, Great Falls, VA, for Plaintiffs., Corliss Vaughn Adams, Tasha Monique Hardy, Office of the Attorney General, Washington, DC, for Defendant.
Civil
null
null
null
null
null
null
null
null
null
0
Published
null
<parties id="b172-7"> Adrienne WRIGHT, et al., Plaintiffs, v. DISTRICT OF COLUMBIA, Defendant. </parties><docketnumber id="AN"> Civil Action No. 11-0384 (AK). </docketnumber><br><court id="b172-9"> United States District Court, District of Columbia. </court><br><decisiondate id="b172-10"> Aug. 10, 2012. </decisiondate><br><attorneys id="b173-11"> <span citation-index="1" class="star-pagination" label="133"> *133 </span> Elizabeth T. Jester, James E. Williams, Jester &amp; Williams, Great Falls, VA, for Plaintiffs. </attorneys><br><attorneys id="b173-12"> Corliss Vaughn Adams, Tasha Monique Hardy, Office of the Attorney General, Washington, DC, for Defendant. </attorneys>
[ "883 F. Supp. 2d 132" ]
[ { "author_str": "Kay", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2011cv0384-26", "author_id": null, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n____________________________________\n )\nADRIENNE WRIGHT, et al., )\n )\n Plaintiffs, )\n v. )\n ) Civil Action No. 11-0384 (AK)\nDISTRICT OF COLUMBIA, )\n )\n Defendant. )\n____________________________________)\n\n\n MEMORANDUM OPINION\n\n On January 11, 2012, the undersigned granted-in-part and denied-in-part Plaintiffs’\n\nAdrienne Wright, et al. (“Plaintiffs”) Motion for Summary Judgment [16] in which Plaintiffs\n\nrequested attorney fees and costs for work in an administrative action under the Individuals with\n\nDisabilities in Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq. (Order, Jan. 11, 2012 [20].)\n\nPending before the undersigned is Plaintiffs’ Motion for Attorneys Fees and Costs [21].\n\nDefendant District of Columbia (“Defendant” or “the District”) opposes Plaintiffs’ Motion for\n\nAttorneys Fees and Costs [22]. For the reasons set forth below, Plaintiffs’ Motion will be\n\ngranted-in-part and denied-in-part.\n\n\n\n I. BACKGROUND\n\n Adrienne Wright is the parent of a minor child who prevailed in an administrative action\n\nbrought against the District of Columbia Public Schools (“DCPS”) pursuant to the IDEA. (See\n\nHearing Officer’s Decision [16-5].) For work in the administrative action, Plaintiffs submitted to\n\n\n\n -1-\n\fDCPS four invoices for attorneys fees and costs totaling $62,563.18. DCPS paid Plaintiffs\n\n$43,207.33 of the requested amount, and Plaintiffs filed suit in this Court for the remaining\n\n$19,355.85, plus prejudgment interest. In the January 11, 2012 Order, the undersigned awarded\n\nPlaintiffs $6,366.15 and denied their request for prejudgment interest.\n\n In the current proceeding, Plaintiffs seek attorneys fees and costs incurred in adjudicating\n\nthe fee dispute in this Court. This is often known as requesting “fees on fees.” See Kaseman v.\n\nDistrict of Columbia, 444 F.3d 637, 640 (D.D.C. 2006). Plaintiffs cite 42.7 hours for Elizabeth\n\nJester (“Jester”), Plaintiffs’ attorney, and 0.7 hours for Mary Williams (“Williams”), Jester’s\n\nparalegal. (See Pls.’ Mot. for Attorney Fees, Ex. 1 [21-4].) Jester’s normal hourly rate is\n\n$450.00 per hour and Williams’ normal hourly rate at $125.00. (See id.) Thus far, Defendant\n\nhas not paid any invoices for fees on fees. Plaintiffs request $18,897.50 in attorney fees and\n\n$503.33 in costs for a total of $19,400.83. (Id.)\n\n\n\n II. ANALYSIS\n\n A. Plaintiffs are entitled to fees on fees\n\n The IDEA allows attorney fees to be collected when the plaintiff is the “prevailing party”\n\n20 U.S.C. § 1415(i)(3)(B). Here, the parties disagree about whether Plaintiffs were the\n\nprevailing party when the undersigned awarded Plaintiffs attorneys fees and costs for work in the\n\nunderlying administrative action. (Pls.’ Mot. at 2; Def.’s Opp. at 3.) This is a false argument.\n\nThe question for determining prevailing party status for fees-on-fees is whether Plaintiffs\n\nprevailed at the administrative level, and this Court has already found that they did. See\n\nKaseman v. District of Columbia, 444 F.3d 637, 640 (D.D.C. 2006) (“[p]arties who prevail at the\n\n\n -2-\n\fadministrative level can also recover fees-on-fees, as our general rule is that the court may award\n\nadditional fees for ‘time reasonably devoted to obtaining attorneys fees’”) (citing Envtl. Def.\n\nFund v. EPA, 672 F.2d 42, 62 (D.C. Cir. 1982). Accordingly, Plaintiffs are entitled to recover\n\nfees-on-fees.\n\n B. Number of Hours\n\n Plaintiffs note that Defendant does not challenge specific time entries in Defendant’s\n\nOpposition, (Pls.’ Reply [23] at 1, n. 1); however, Defendant also has not paid Plaintiffs for the\n\ntime logged, and therefore has not conceded that Plaintiffs’ time entries are reasonable. The\n\nundersigned finds that a number of time entries are not reasonable and do not need to be\n\nreimbursed.\n\n First, on May 24, 2012, Tasha Hardy (“Hardy”) entered her appearance in the case for the\n\nDistrict. Plaintiffs seek 0.20 hours for “[r]eview Entry of Apperance [sic] from T. Hardy, Esq.,\n\nAAG.” Plaintiffs’ time entry from May 20, 2012 indicates that Jester spoke to Hardy on the\n\nphone on that date, so Jester already had knowledge that Hardy was the new lawyer for the\n\nDistrict and did not need to review Hardy’s Entry of Appearance. The time entry on May 24,\n\n2012 is not reimbursable.\n\n Second, Plaintiffs’ final five time entries relate to the request for fees-on-fees. On March\n\n4, 2012, April 4, 2012 and April 25, 2012, Plaintiffs’ entries involve correspondence from Jester\n\nto Hardy about the possibility of settling the claim for fees-on-fees. (See Pls.’ Reply, Exs. 1-3.)\n\nOn May 25 and 26, Plaintiffs’ entries involve drafting and finalizing the pending Motion for\n\nAttorneys Fees and Costs. Receiving fees for the drafting of the pending Motion amounts to\n\n“fees-on-fees-on-fees.” Plaintiffs are entitled to fees incurred during the adjudication of the due\n\n\n -3-\n\fprocess complaint and for fees incurred in obtaining the reimbursement of those fees. However,\n\nreceiving “fees on fees on fees” is too attenuated from the adjudication of the due process\n\ncomplaint to be reimbursable. Plaintiffs’ time entries are reduced by 3.9 hours.\n\n Noting the preceding deductions, Plaintiffs are entitled to 38.6 hours for Jester and 0.7\n\nhours for Williams.\n\n C. Hourly Rate\n\n In the January 11, 2012 Order, the Court found that Plaintiffs were entitled to an hourly\n\nrate of three-quarters of the Laffey Matrix for work related to the administrative due process\n\ncomplaint. (Order, Jan. 11, 2012 at 7.) For a lawyer with over 20 years of experience, like\n\nJester, the awarded hourly rates were $348.75 and $356.25 per hour. (Id. at 8.)1 This rate\n\nreflected Jester’s knowledge of IDEA law and administrative proceedings and the level of\n\ncomplexity of the underlying lawsuit. (Id. at 6.)\n\n A “reasonable” hourly rate shall be based on rates prevailing in the community and the\n\nburden is on Plaintiffs to show the reasonableness of any rate. 20 U.S.C. § 1415(i)(3)(c);\n\nCovington v. District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995). Plaintiffs request\n\nhourly rates according to the Laffey Matrix, which was created to follow rates charged by\n\nlitigators who practice complex federal litigation in the District of Columbia and are presumptive\n\nmaximum rates for such litigation. Laffey v. Northwest Airlines, Inc. 572 F. Supp. 354, 374\n\n(D.D.C. 1983) aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984) (“the\n\nrelevant legal market in this action is complex employment discrimination litigation”). Where\n\n\n\n 1\n See U.S. Attorney’s Office - District of Columbia, Laffey Matrix – 2003-2012,\nhttp://www.justice.gov/usao/dc/divisions/civil_Laffey_Matrix_2003-2012.pdf.\n\n -4-\n\fthe federal litigation is not particularly complex, the plaintiff is not entitled to the full Laffey\n\nrates. See Rooths v. District of Columbia, No. 09-cv-0492, 2011 WL 3529292, at *6 (D.D.C.\n\nAug. 9, 2011).\n\n In determining the rate for “fees-on-fees,” the undersigned has previously held that “fee\n\nlitigation is not complex federal litigation and does not necessarily entail specialized expertise\n\nand experience.” Smith v. District of Columbia, No. 02-cv-373, 2005 WL 914773 at *3 (D.D.C.\n\nApr. 18, 2005) (awarding Plaintiff’s counsel an hourly rate of $250 for fees-on-fees litigation).\n\nIn contrast, the undersigned’s January 11, 2012 Order noted that administrative proceedings\n\nunder IDEA do require specialized expertise and experience. (See Pls.’ Mot. for Attorney Fees,\n\nEx. 1.) Following these two prior decisions, the hourly rate for fee litigation should be less than\n\nthe rate for work in the underlying administrative proceeding. Furthermore, Plaintiffs have not\n\ndemonstrated the complexity of the fee litigation. Accordingly, the undersigned holds that\n\nPlaintiffs are entitled to half of the applicable rate under the Laffey Matrix, or $237.50 per hour\n\nfor work prior to June 1, 2011 and $247.50 for work on or after June 1, 2011.2\n\n Williams, Jester’s paralegal, is entitled to an hourly rate of $140.00 per hour under the\n\nLaffey Matrix. Williams prepared the attorney fee invoice for the Motion for Attorney Fees. In\n\nthe January 11, 2012 Order, the undersigned awarded Williams three-quarters of the Laffey rate.\n\n\n 2\n On April 19, 2011, Judge Huvelle held a status conference that the parties attended in\nperson. (Minute Entry, April 19, 2011.) On that date, Plaintiffs seek 1.80 hours under “[t]ravel\nto court hearing” at the rate of $250.00 per hour. (Pls.’ Mot. for Attorney Fees, Ex. 1 at 2.)\nTravel time is generally compensated at half of the normal hourly rate. Bucher v. District of\nColumbia, 777 F. Supp. 2d 69, 77 (D.D.C. 2011); but see Thomas ex rel. A.T. v. District of\nColumbia, No. 03-cv-1791, 2007 WL 891367 at *13 (D.D.C. Mar. 22, 2007) (reducing attorney’s\nhourly rate from $360.00 per hour to $160.00 per hour for travel time). Because the undersigned\nfinds that the relevant hourly rate for Jester would be $237.50 per hour, Jester’s travel time will\nbe reimbursed at $118.75 per hour.\n\n -5-\n\fBecause Williams’ work in this case is the same type of work done previously, the Court will\n\naward Williams three-quarter of the Laffey rate here, or $105.00 per hour.\n\n D. Calculation\n\n After making the above modifications, Jester logged 24.9 hours prior to June 1, 2011 for\n\nwhich half of the relevant hourly rate under the Laffey Matrix is $237.50 per hour. Jester logged\n\n11.9 hours on or after June 1, 2011, for which half of the relevant hourly rate under the Laffey\n\nMatrix is $247.50 per hour. Williams logged 0.7 hours after June 1, 2011 for which three-\n\nquarters of the relevant hourly rate under the Laffey Matrix is $105.00 per hour. Finally, Jester\n\nlogged 1.8 hours of travel time at half of the hourly rate otherwise awarded, equaling $118.75 per\n\nhour. The total amount Plaintiffs are entitled to for attorneys’ fees is $9,146.25.\n\n E. Costs\n\n Plaintiffs log $350.00 as reimbursement for the “Complaint Filing Fee.” (Compl.; Pl.’s\n\nMot. for Attorney Fees, Ex. 4 at 3.) Plaintiffs also request reimbursement of $100.00 in total for\n\nService of Process Fees on the Mayor and the Attorney General. (Pls.’ Supplemental Motion\n\n[24].) Plaintiff will be granted those fees. See LCvR 54.1(d) (costs of service of summons and\n\ncomplaint are costs taxable by the clerk) Lillbask ex rel. Mauclaire v. Connecticut Dept. of\n\nEduc., No. 3:97-cv-1202, 2006 WL 752872 (D. Conn. Mar. 17, 2006) (granting costs for filing\n\nfee and service of process).\n\n Plaintiffs are also granted fax and copying costs at $0.15 per page and mileage at $0.558\n\nper mile. Based on Jester’s time sheets, these costs total $48.89. Finally, Plaintiffs request $4.00\n\nfor Jester’s parking meter during the hearing before the undersigned and $0.44 in postage.\n\n\n\n\n -6-\n\fPlaintiffs are granted parking fees of $4.00 and $0.44 in postage. Accordingly, Plaintiffs are\n\nentitled to $503.33 in costs.\n\n\n\n III. CONCLUSION\n\n For the above reasons, Plaintiffs’ Motion for Attorneys Fees and Costs will be granted-in-\n\npart and denied-in-part. Plaintiffs will be awarded $9,649.58.\n\n\n\n\nDATE: August 10, 2012 /s/\n\n ALAN KAY\n UNITED STATES MAGISTRATE JUDGE\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 2662014 } ]
District of Columbia
District Court, District of Columbia
FD
USA, Federal
319,925
Cummings, Fairchild, Jame-Son
1974-10-29
false
united-states-v-leonard-b-ricketson
null
United States v. Leonard B. Ricketson
UNITED STATES of America, Plaintiff-Appellee, v. Leonard B. RICKETSON, Defendant-Appellant
George E. Faber, Chicago, Ill., for defendant-appellant., James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee.
null
null
null
null
null
null
null
Heard Feb. 26, 1974., Certiorari Denied Oct. 29, 1974.
See 95 S.Ct. 227.
null
45
Published
null
<parties id="b443-6"> UNITED STATES of America, Plaintiff-Appellee, v. Leonard B. RICKETSON, Defendant-Appellant. </parties><br><docketnumber id="b443-8"> No. 73-1618. </docketnumber><br><court id="b443-9"> United States Court of Appeals, Seventh Circuit. </court><br><otherdate id="b443-10"> Heard Feb. 26, 1974. </otherdate><br><decisiondate id="b443-11"> Decided May 30, 1974. </decisiondate><br><otherdate id="b443-12"> Certiorari Denied Oct. 29, 1974. </otherdate><br><seealso id="b443-13"> See 95 S.Ct. 227. </seealso><br><attorneys id="b445-23"> <span citation-index="1" class="star-pagination" label="369"> *369 </span> George E. Faber, Chicago, Ill., for defendant-appellant. </attorneys><br><attorneys id="b445-24"> James R. Thompson, U. S. Atty., Gary L. Starkman, Asst. U. S. Atty., Chicago, Ill., for plaintiff-appellee. </attorneys><br><judges id="b445-25"> Before FAIRCHILD and CUMMINGS, Circuit Judges, and JAME-SON, <a class="footnote" href="#fn*" id="fn*_ref"> * </a> Senior District Judge. </judges><div class="footnotes"><div class="footnote" id="fn*" label="*"> <a class="footnote" href="#fn*_ref"> * </a> <p id="b445-13"> Senior District Judge William J. Jameson of tion. the District of Montana is sitting by designa- </p> </div></div>
[ "498 F.2d 367" ]
[ { "author_str": "Cummings", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/498/498.F2d.367.73-1618.html", "author_id": null, "opinion_text": "498 F.2d 367\n UNITED STATES of America, Plaintiff-Appellee,v.Leonard B. RICKETSON, Defendant-Appellant.\n No. 73-1618.\n United States Court of Appeals, Seventh Circuit.\n Heard Feb. 26, 1974.Decided May 30, 1974, Certiorari Denied Oct. 29, 1974, See95 S.Ct. 227.\n \n George E. Faber, Chicago, Ill., for defendant-appellant.\n James R. Thompson, U.S. Atty., Gary L. Starkman, Asst. U.S. Atty., Chicago, Ill., for plaintiff-appellee.\n Before FAIRCHILD and CUMMINGS, Circuit Judges, and JAMESON, /0/ Senior District Judge.\n CUMMINGS, Circuit Judge.\n \n \n 1\n In February 1972, a 3-count indictment was returned against defendant and Leo Rugendorf, Francis Hohimer and Colin Green. The charges livolved a jewelry theft that took place in Indianapolis, Indiana, on June 16, 1967. The first count charged the four defendants with a conspiracy to transport in interstate commerce jewelry worth more than $5,000, and to receive it and sell it-- all in violation of 18 U.S.C. 371, the general conspiracy statute. Count II charged them with transporting the jewelry from Indianapolis to Chicago in violation of 18 U.S.C. 2 and 2314. The final count charged that defendant Rugendorf received the same jewelry in interstate commerce, knowing it to have been stolen, in violation of 18 U.S.C. 2 and 2315. Sections 2314 and 2315 forbid the transportation and sale or receipt of stolen goods with a value of $5,000 or more; Section 2 is the general aiding and abetting statute.\n \n \n 2\n Early in the morning of June 16, 1967, the Indianapolis residence of Mr. and Mrs. Nicholas Noyes was burglarized by Ricketson, Green and Hohimer. Later that morning in Chicago, Rugendorf picked up the jewelry at Hohimer's apartment. That afternoon an unidentified person gave Rugendorf $20,000 for the jewelry. Rugendorf turned the money over to Hohimer. The next day Rugendorf augmented the sum by giving Hohimer an additional $700. Hohimer paid his brother Wayne $50, Green $200 and Ricketson $700, retaining the balance.\n \n \n 3\n Hohimer and Green pled guilty and became government witnesses. Rugendorf was severed due to ill health1 and testified from a hospital bed on befalf of Ricketson, who stood trial alone. After a jury trial, Ricketson was convicted on Counts I and II as charged and on May 2, 1973, received a 3-year sentence concurrent to his prior five to ten-year sentence on a state charge of burglary, theft and bribery. After receiving his federal sentence, Ricketson was paroled from the Illinois State Penitentiary and delivered to the Federal Correctional Institute at Sandstone, Minnesota on June 30, 1973.\n \n Pre-indictment Delay\n \n 4\n Defendant urges that his Sixth Amendment right to a speedy trial was violated because of the 56-month period between the June 1967 offense and the return of the indictment on February 22, 1972, four months before the expiration of the five-year statute of limitations (18 U.S.C. 3282). However, in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468, the Supreme Court held that the Sixth Amendment speedy trial provision does not apply until a putative defendant becomes an accused. Targeting a suspect for investigation does not make him an accused for this purpose. United States v. Joyce, 499 F.2d 9 at 19-20 (7th Cir. 1974). Consequently, even if the Government knew of defendant's involvement in the Noyes burglary at an early date, his right to a speedy trial did not accrue until indictment.\n \n \n 5\n Although the Sixth Amendment cannot be violated by pre-indictment delay, Marion indicated that the due process clause of the Fifth Amendment would be violated if pre-indictment delay caused substantial prejudice to a defendant's right to a fair trial and was purposely occasioned by the Government to obtain a tactical advantage over him. 404 U.S. at 324. Defendant does not claim that his trial was prejudiced by the delay. His only claim of prejudice is that his state parole was affected and any advantage of concurrent sentencing was minimized. Although this could be prejudicial for speedy trial purposes (Smith v. Hooey, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607), it did not prejudice defendant's due process right to a fair trial. Nothing in United States v. Hauff, 461 F.2d 1061, 1067-1068 (7th Cir. 1972), or the pre-Marion case of United States v. Strauss, 452 F.2d 375, 377-378 (7th Cir. 1971), is to the contrary. Those cases rejected claims similar to defendant's as 'speculative, * * * almost fanciful,' 'conjectural, if not frivolous * * *.' They therefore had no occasion to consider whether a serious claim of prejudice to parole or concurrent sentencing rights would be legally relevant under the due process clause to pre-indictment delay. We hold that it is not.\n \n \n 6\n Furthermore, defendant has shown no intentional delay by the Government to obtain an advantage over him. The Government has represented that 'the facts and circumstances surrounding this crime did not come to its attention until Summer, 1971.' The FBI's 1967 interview with Mrs. Marguerite Lilly Noyes, the victim, does not cast doubt on this representation, for her interview with the FBI disclosed no information as to the identities of the masked participants in the burglary. Since neither intentional delay nor prejudice to a fair trial have been shown by defendant, the pre-indictment delay did not violate the due process clause. United States v. Marion,supra, at 325-326.\n \n Post-indictment Delay\n \n 7\n Defendant also urges that his Sixth Amendment right to a speedy trial was violated by the eleven-month delay between his motion for immediate trial and trial. As noted, defendant was indicted in February 1972. He filed a single motion for immediate trial in April 1972, but it is clear from his accompanying memoranda that he was really seeking relief in the form of dismissal for pre-indictment delay and a limitation on the Government's proof at trial. This was the argument's and request for relief under the heading 'Motions to Dismiss and An Immediate Trial' in the first memorandum; immediate trial was not mentioned in defendant's reply memorandum, after the Government had represented that it was ready for trial but that defendant had sought two continuances. The district judge denied the relief requested and never ruled on the motion for immediate trial; defendant did not complain that this was an oversight.\n \n \n 8\n The four-part balancing test of Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101, requires us to consider the length of delay, the reason for the delay, defendant's assertion of right, and the prejudice to the defendant.\n \n \n 9\n As to the length of delay, longer periods have been tolerated in speedy trial cases. For example, United States v. DeTienne, 468 F.2d 151 (7th Cir. 1972), involved a 19 1/2-month pre-trial delay. But eleven months is substantial, and the reasons for the delay are unclear. The case is not particularly complex, although in fairness to the Government, we note that its problems of proof must have been much more difficult before Hohimer's September 11, 1972, guilty plea. The government speculates that 'some delay was occasioned by Rugendorf's health problems and the time necessary for Hohimer and Green to decide to change their pleas.' We can judicially note that the trial judge was newly appointed when this indictment was returned; he therefore had a number of cases older than this one reassigned to him from other judges. The docket sheet shows that pre-trial motions were decided on May 5, 1972, and that thereafter there were status calls on May 24, June 22, September 15, and October 10. Mrs. Noyes' deposition and Hohimer's guilty plea are the only events of significance in this five-month period. Thereafter, trial dates of November 27, 1972, and February 20, 1973, were set and vacated; there was a status call on December 20, 1972. Trial commenced on March 5, 1973. During this five-month period, Rugendorf was severed, Green pled guilty, a pre-trial conference was held, and subpoenas were issued. The record before us does not indicate why progress was so slow. The proceedings at each status call and vacated trial date have not been transcribed. But at each session, Judge McLaren entered an order setting the date for the next. We must assume that he had sufficient reasons each time he vacated a trial date, or set the next status call relatively far into the future. Defendant's speedy trial claim is in practical effect an attack on those orders. Appellant must therefore assume the burden of explaining why Judge McLaren's reasons for delay were insufficient, and of providing a record on which his claims can be evaluated. He has not done so. It is also noteworthy that the docket sheet shows no Government requests for continuances. We conclude that adequate reason existed for the delay.\n \n \n 10\n Although, as seen, defendant initially sought an early trial, there is no indication he pressed the point thereafter. His one pro forma demand is not entitled to great weight.\n \n \n 11\n As noted, defendant's only claim of prejudice is that his total period of incarceration might have been lengthened by the eleven-month delay, since he was paroled by the Illinois Parole Board the month after the district court imposed a three-year federal sentence concurrent with the state sentence.2 However, any prejudice was minimized because Judge McLaren sentenced defendant under 18 U.S.C. 4208(a)(2) and said explicitly that he did so because of defendant's lengthy state imprisonment. We do not suggest that sentencing under 4208(a)(2) was a remedy for the lack of a speedy trial. United States v. Strunk, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56. Rather, we hold that it is one factor which is relevant to whether a speedy trial was denied.\n \n \n 12\n In light of our conclusions on length of delay, reasons for delay, and demand for speedy trial, we conclude that defendant has shown insufficient prejudice to establish a Sixth Amendment violation. See United States v. Cabral, 475 F.2d 715, 719-720 (1st Cir. 1973); United States v. Taddeo,434 F.2d 228 (2d Cir. 1970), certiorari denied, 401 U.S. 944, 91 S.Ct. 957, 28 L.Ed.2d 226; United States v. Lebosky, 413 F.2d 280 (3d Cir. 1969), certiorari denied, 397 U.S. 952, 90 S.Ct. 977, 25 L.Ed.2d 134. United States v. Strunk, 467 F.2d 969 (7th Cir. 1972), reversed on other grounds,412 U.S. 434, does not require a contrary result.3 There the reasons for delay were unacceptable, and defendant had repeatedly demanded a speedy trial. As we pointed out in DeTienne in language applicable here, prejudice inferable from incarceration 'unenhanced by tangible impairment of the defense function and unsupported by a better showing on the other factors than was made here, does not alone make out a deprivation of the right to speedy trial.' 468 F.2d at 158.\n \n \n 13\n Impact of Interstate Agreement on Detainers Act\n \n \n 14\n The Interstate Agreement on Detainers Act became a federal law in 1970 and is reproduced in Title 18 U.S.C.A. Appendix at pp. 136-141 of the 1974 Supplement. Illinois joined the Agreement in 1971. Ill.Rev.Stats.1971, ch. 38, 157-31. The Illinois act is now codified at Ill.Rev.Stats.1973, ch. 38, 1003-8-9. Before the oral argument, we asked counsel to be prepared to discuss their position with respect to the impact of this Agreement on pre-trial delay. We were told that the federal detainer was not lodged with the Illinois prison authorities until August 22, 1972.4 Defendant's April 1972 motion for immediate trial and for dismissal because of pre-indictment delays of course did not rely on this Agreement, for no datainer had been filed. In any event, the 180-day requirement contained in Article III of the Act does not apply until the prisoner causes the written notice and certificate specified therein to be delivered to the court and prosecutor. Since this procedure was not followed, Article III is inapplicable.\n \n \n 15\n Article IV requires commencement of the trial of a prisoner against whom a federal detainer has been lodged within 120 days of the arrival of the prisoner in federal custody pursuant to written request of the 'appropriate' federal officer (presumably the United States Attorney), approved and transmitted by the district court. Article IV also requires trial before the prisoner is returned to state custody. We will assume that the Writs of Habeas Corpus Ad Prosequendum issued in this case are requests for purposes of the Agreement. According to the record and the representations at oral argument, the first time after August 22, 1972, that defendant was received into federal custody was March 1, 1973. His trial took place on March 5-7, well within the 120-day limit and before he was returned to state custody on May 4.\n \n \n 16\n Defendant's position at oral argument was based on the fact that he was in federal custody in March 1972 for arraignment, on July 14, 1972, for Mrs. Noyes' deposition, and presumably on May 5, 1972, when he was in court for disposition of pre-trial motions. The return on the May 5 writ does not indicate whether defendant was escorted to the courtroom by state or federal officials. On each of these occasions, he was returned to state custody without being tried, and each occasion was more than 120 days before trial. Article IV(c) permits continuances beyond the 120-day limit for good cause shown, and defendant has not successfully attacked Judge McLaren's granting of continuances. But there are no exceptions to the requirement that defendant not be returned to state custody untried. However, each federal custody was before any detainer was filed, so that the Agreement is inapplicable.\n \n \n 17\n Accordingly, we need not decide whether the Agreement is exclusive when it applies. We only note that it appears that the United States Attorney never intended to make a request under the Agreement in 1972; he wanted custody of defendant for short periods for particular purposes, but it clearly was not contemplated in March, May or July 1972 that defendant would be held in federal custody until tried.\n \n The Noyes Deposition\n \n 18\n The Government took the deposition of Mrs. Noyes pursuant to 18 U.S.C. 3503. The transcript was read into the record after proof that Mrs. Noyes was too ill to come to Chicago for the trial. Defendant has made a broad-ranging attack on the admissibility of this deposition.\n \n \n 19\n Mrs. Noyes testified that the jewelry stolen was worth $200,000. However, on cross-examination she admitted that the values to which she testified were set by her insurer and not by her. Defendant argues that even if she had testified in open court, this admission would make her testimony inadmissible hearsay. We disagree, for her testimony was not based on any idle expression of opinion by an insurance agent. Rather, it was based on an actual transaction: the amount the insurer paid for her jewelry. See III Wigmore on Evidence, 719 (Chadbourn Rev.1970). Of course, the transaction was not between a willing buyer and a willing seller, so that it might be argued that the insurer's conduct in paying for the jewelry is offered as evidence of its belief as to market value and is therefore an implied hearsay assertion. The trend of modern rules and decisions is to admit assertive conduct as outside the hearsay rule. McCormick on Evidence, 250 (2d ed. 1972). We agree with this trend and hold that an insurance loss payment is admissible to prove market value of stolen goods. Even if the insurance value were hearsay, it would be admissible as a declaration against interest, since the insurer's valuation was forty times the value defendant argues was not proven, and $10,000 more than Mrs. Noyes originally claimed.\n \n \n 20\n Admitting the deposition did not violate defendant's right to confrontation. In California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 26 L.Ed.2d 489, the Supreme Court said that previous testimony taken under circumstances approximating trial is admissible where the witness is unavailable despite good faith efforts of the Government to produce her. That statement controls here. Mrs. Noyes was under oath and Ricketson's counsel was given full opportunity to cross-examine her. This opportunity came after notice that the deposition was being taken for use at trial-- an advantage Green's counsel did not have in California v. Green. The defendant was present at the deposition to assist his counsel. The passage from Green on which we rely is at best an alternative holding; it has been labeled dicta, and it has been criticized. See 8 Moore's Fed.Prac. P 15.02 (2d ed. 1973 Supp.); United States v. Singleton, 460 F.2d 1148, 1155-1157 (2d Cir. 1972, Oakes, J. dissenting). But it is not an off-hand comment buried in a footnote; it is a separate subdivision of a majority opinion, and we are not at liberty to depart from it. That the Supreme Court considers the passage correct is emphasized by its recent promulgation of amendments to Federal Rule of Criminal Procedure 15, authorizing for all defendants the deposition procedure followed here. 42 LW 4554. We agree with the Singleton majority that the issue is settled. 460 F.2d at 1152-1153.\n \n \n 21\n Defendant raises several contentions related to the statutory requirement that before the Government may use a deposition, the Attorney General's designee must certify that the prosecution 'is against a person who is believed to have participated in an organized criminal activity.' 18 U.S.C. 3503(a). The Supreme Court's amendments to Rule 15 will probably render these contentions moot, but the amendments are not yet in effect, and we must decide the case under present law. Defendant argues that he has been continuously imprisoned since the effective date of Section 3503, so that if the Assistant Attorney General's certification refers to him, it must rely on organized criminal activity which pre-dates the Act, and thereby gives the Act an ex post facto effect. Since the deposition was admissible against defendants believed to have participated in organized criminal activity because they were more dangerous or harder to convict, and not to impose additional punishment for pre-Act crimes, there was no violation of the ex post facto clause. See Hawker v. New York, 170 U.S. 189, 196, 18 S.Ct. 573, 42 L.Ed. 1002. For similar reasons, Section 3503 is not a bill of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 319-323, 18 L.Ed. 356. Although United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484, substantially expanded past notions of what is punishment for bill of attainder purposes, we see no way that this change in the rules of evidence can be considered punishment. Cf. Hopt v. Utah, 110 U.S. 574, 587-590, 4 S.Ct. 202, 28 L.Ed. 262.\n \n \n 22\n Defendant also argues that there is no evidentiary support for the certification that he has participated in organized criminal activity. We agree with Singleton, 460 F.2d at 1154, that such certifications are not judicially reviewable absent a showing of bad faith. The statutory requirement is not that defendant actually have participated in organized crime; it is only that the Attorney General or his designee believe that he has so participated. Defendant has not contended that the Assistant Attorney General did not actually believe what he certified.\n \n \n 23\n The deposition statute does not infringe defendant's freedom of association, as claimed. The statute is based on his personal participation in organized criminal activity, not mere association with organized criminals.\n \n \n 24\n Finally, defendant argues that he has been denied equal protection as embodied in the Fifth Amendment's due process clause. The Supreme Court's decisions create some difficulty in determining the appropriate standard of review. This classification 'touches on' the right to confrontation, a fundamental right. Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 22 L.Ed.2d 600. As Justice Harlan pointed out in dissent, if the fundamental constitutional right were itself violated, there would be no need to reach the equal protection issue, so that the majority, he reasoned, must have meant that strict scrutiny applies when, as here, the fundamental right is affected but not violated. 394 U.S. at 661-662. However, that conclusion is undercut by Johnson v. Robinson, 415 U.S. 361, 94 S.Ct. 1160, 39 L.Ed.2d 389, 42 LW 4313, 4317, n. 14, which stated without explanation that strict scrutiny did not apply in that case because the fundamental right involved was not violated. As to the other criterion, being believed to have participated in organized criminal activity is plainly an unsuspect category. Considering both factors, we conclude that this classification should be upheld if it has a rational basis.\n \n \n 25\n The House Judiciary Committee found that the need for Section 3503 was 'most acute in cases involving organized criminal activity * * *.' House Rep. No. 91-1549 (1970 U.S.Code Cong. &amp; Admin.News, pp. 4007, 4025). Representative McCulloch explained on the floor that 'organized criminals have no motive to kill or kidnap a witness if the damning testimony is recorded and admissible.' 116 Cong.Rec. 35197 (1970). See also remarks of Representative Poff at 35200. Congress could have concluded that organized criminals were more likely to intimidate witmesses, and that the longer the taking of testimony was delayed, the greater the opportunity for intimidation. This would be a rational basis for the statute, though not for its application here where the witness was ill but not alleged to be threatened. We are left with the mere fact that Congress considered organized crime to be a particularly dangerous and hard to prosecute form of crime, requiring extreme prosecutorial measures. Since persons who have voluntarily participated in organized illegal activity are such a peculiarly unsuspect category, we find this a sufficient rational basis for the classification. Accordingly, there is no denial of equal protection.\n \n Jurisdictional Amount\n \n 26\n Defendant's contention that the jurisdictional amount was not proven is largely dependent on his contention that Mrs. Noyes' deposition was inadmissible. Her testimony was of course sufficient. Hohimer's testimony as to what he was paid on the 'thieves' market' was also sufficient. United States v. Ditata, 469 F.2d 1270, 1272 (7th Cir. 1972).\n \n Admissibility of Burglary Tools as Weapons\n \n 27\n Defendant next argues that the trial court improperly admitted into evidence certain handguns and burglary tools. Hohimer testified that these items were for use in the commission of this burglary. His testimony was partially corroborated by codefendant Green. Although defendant was not charged with burglary, the burglary was a key overt act in the conspiracy charge. The exhibits were taken to the Noyes' home to be used if needed. Since the exhibits were for use in the conspiracy, their probative effect outweighed their prejudicial effect. Cf. United States v. Stone, 471 F.2d 170, 172 (7th Cir. 1972). Because these exhibits were identified by Hohimer as the actual objects about which he testified, the Government was not required to establish their chain of custody. United States v. Blue, 440 F.2d 300, 303 (7th Cir. 1971), certiorari denied, 404 U.S. 836, 92 S.Ct. 123, 30 L.Ed.2d 68.\n \n Admissibility of Aerial Photographs\n \n 28\n Although the defendant's principal brief complains of the admission of two large aerial photographs of the burglarized Noyes home and grounds, the reply brief has apparently abandoned the point. Defendant did not object to their admissibility when they were finally admitted after the local sheriff identified them, so that we need not consider the matter. In any event, Hohimer and Sheriff Stout sufficiently authenticated the photographs. They were relevant to corroborate and explain the testimony about the burglary and the difficult access to the residence.\n \n \n 29\n For the foregoing reasons, the judgment is affirmed.\n \n \n \n *\n Senior District Judge William J. Jameson of the District of Montana is sitting by designation\n \n \n 1\n Rugendorf died before his trial took place\n \n \n 2\n Defendant's brief states that the parole was in June of 1973 (Br. 4)\n \n \n 3\n In Strunk, the Supreme Court required dismissal of the indictment because the Government did not cross-petition for certiorari as to whether defendant had been denied a speedy trial\n \n \n 4\n The record shows a Government motion for a 'bench warrant and detainer,' and the issuance of a bench warrant on July 18, 1972. We need not explore whether there was a further delay in lodging the detainer or a mistake at oral argument, since defendant was never in federal custody between July 18 and August 22\n \n \n ", "ocr": false, "opinion_id": 319925 } ]
Seventh Circuit
Court of Appeals for the Seventh Circuit
F
USA, Federal
291,427
Hill, Murrah, Pickett
1970-07-14
false
winfield-associates-inc-v-w-l-stonecipher
null
Winfield Associates, Inc. v. W. L. Stonecipher
WINFIELD ASSOCIATES, INC., Appellee, v. W. L. STONECIPHER, Appellant
Robert H. Bingham, Kansas City, Kan. (Lee E. Weeks, Leonard 0. Thomas, J. D. Lysaught, and Ervin G. Johnston, Kansas City, Kan., on the brief) for appellant., Arlyn D. Haxton, Kansas City, Mo. (Blumenfeld & Blumenfeld, Chicago, 111., McAnany, Van Cleave & Phillips, Kansas City, Kan., Dietrich, Tyler, Davis, Burrell & Dicus, and Robert K. Dreiling, Kansas City, Mo., on the brief) for appellee.
null
null
null
null
null
null
null
null
null
null
65
Published
null
<parties id="b1151-9"> WINFIELD ASSOCIATES, INC., Appellee, v. W. L. STONECIPHER, Appellant. </parties><docketnumber id="A_M8"> No. 459-69. </docketnumber><br><court id="b1151-11"> United States Court of Appeals, Tenth Circuit. </court><br><decisiondate id="b1151-12"> July 14, 1970. </decisiondate><br><attorneys id="b1152-8"> <span citation-index="1" class="star-pagination" label="1088"> *1088 </span> Robert H. Bingham, Kansas City, Kan. (Lee E. Weeks, Leonard 0. Thomas, J. D. Lysaught, and Ervin G. Johnston, Kansas City, Kan., on the brief) for appellant. </attorneys><br><attorneys id="b1152-9"> Arlyn D. Haxton, Kansas City, Mo. (Blumenfeld &amp; Blumenfeld, Chicago, 111., McAnany, Van Cleave &amp; Phillips, Kansas City, Kan., Dietrich, Tyler, Davis, Burrell &amp; Dicus, and Robert K. Dreiling, Kansas City, Mo., on the brief) for appellee. </attorneys><br><judges id="b1152-10"> Before PICKETT, MURRAH and HILL, Circuit Judges. </judges>
[ "429 F.2d 1087" ]
[ { "author_str": "Hill", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/429/429.F2d.1087.459-69_1.html", "author_id": null, "opinion_text": "429 F.2d 1087\n WINFIELD ASSOCIATES, INC., Appellee,v.W. L. STONECIPHER, Appellant.\n No. 459-69.\n United States Court of Appeals, Tenth Circuit.\n July 14, 1970.\n \n Robert H. Bingham, Kansas City, Kan. (Lee E. Weeks, Leonard O. Thomas, J. D. Lysaught, and Ervin G. Johnston, Kansas City, Kan., on the brief) for appellant.\n Arlyn D. Haxton, Kansas City, Mo. (Blumenfeld &amp; Blumenfeld, Chicago, Ill., McAnany, Van Cleave &amp; Phillips, Kansas City, Kan., Dietrich, Tyler, Davis, Burrell &amp; Dicus, and Robert K. Dreiling, Kansas City, Mo., on the brief) for appellee.\n Before PICKETT, MURRAH and HILL, Circuit Judges.\n HILL, Circuit Judge.\n \n \n 1\n This appeal from the Kansas District concerns the denial of relief from a default money judgment rendered in the Northern District of Illinois.\n \n \n 2\n The default judgment was rendered on June 30, 1966, in the amount of $27,000 plus interest and costs in favor of appellee and against appellant. Pursuant to 28 U.S.C. &#167; 1963, on November 18, 1966, the judgment was registered in the District of Kansas for the purpose of enforcing the same against property in the Kansas District belonging to appellant. Stonecipher thereafter filed a motion under Rule 60(b), F.R.Civ.P., 28 U.S.C., in the Kansas District attacking the judgment as null and void, alleging therein all of the grounds set out in the Rule plus allegations of improper service upon Stonecipher and lack of notice of the application for default judgment and the hearing thereon in violation of Rule 55(b) (2), F.R.Civ.P., 28 U.S.C. Appellee then filed a motion to strike or dismiss the motion for a show cause order. This motion was denied and the matter proceeded to an evidentiary hearing, after which the controversy was submitted to the court.\n \n \n 3\n The trial court made extensive findings of fact, which we summarize as follows:\n \n \n 4\n Stonecipher entered into an agreement with appellee Winfield wherein Winfield agreed to provide Stonecipher with a \"bonded deferred commitment\" within 15 days. The commitment was to be used as a vehicle to obtain interim financing for Stonecipher in the amount of $300,000.00, and a condition of the agreement was that the commitment, when issued, had to be financially acceptable to the interim lender. The agreement further provided that Winfield should receive 10% of the amount of the commitment or a total of $30,000 as the fee for procuring the commitment, and $3,000 of this fee was advanced at the signing of the agreement. Subsequently Winfield instituted suit in the United States District Court for the Northern District of Illinois seeking the $27,000 balance of the fee and alleging that appellee had performed the agreement but had not been fully paid.\n \n \n 5\n After process was served on Stonecipher on March 30, 1966, he forwarded the complaint and summons to Edward Sexton, an attorney practicing in the State of Arizona, the attorney who had previously represented him in the negotiations with Winfield, and Sexton agreed to represent Stonecipher in the Illinois suit. On April 20, 1966, Sexton telephoned one Edgar Blumenfeld of Chicago, counsel for Winfield, and obtained an oral extension of time within which to answer the pending complaint. Sexton also advised Blumenfeld that he would obtain and forward affidavits proving that Winfield had not procured a commitment satisfactory to the interim lender and was not entitled to recover the procurement fee.\n \n \n 6\n On May 10, 1966, the Clerk of the Illinois District Court mailed notice to Blumenfeld that the pending suit was set for a status report on June 16th. Subsequently on May 16th Blumenfeld received another call from Sexton to inform Blumenfeld that the affidavits, answer and counterclaim, stipulation for an extension of time, and notice for leave to appear specially would be prepared soon and would be sent to Blumenfeld for presentation to the Court on behalf of Sexton's client. During that telephone conversation Blumenfeld agreed that upon receipt of the pleadings and motions he would present them to the Court on Sexton's behalf, but Blumenfeld did not inform Sexton the case had been set for report on June 16, 1966. The pleadings and motions were forwarded to Blumenfeld on June 6th, and he presented them to the Court on June 9th. The Court, under its local Court Rule 7(b), refused to entertain the application to appear specially and the answer and counterclaim were not filed.\n \n \n 7\n Blumenfeld thereafter forwarded his letter dated June 13, 1966, in which he advised Sexton that the local rules of the court required his client to appear by an attorney admitted to practice in the Northern District of Illinois. He further suggested that this be accomplished by June 17th \"so as not to make necessary the entry of an order of default judgment.\" Blumenfeld's letter contained no mention of the setting of the case for report on status on June 16th. Sexton received this letter from Blumenfeld on June 16 or 17, 1966.\n \n \n 8\n Subsequently, Blumenfeld filed an affidavit for default judgment on June 21, 1966, obtaining a hearing on that date, and further obtained a setting for proof of damages on June 30, 1966. No notice of either the hearing on June 21st or the setting on June 30th was given Sexton or his client Stonecipher, and on June 30, 1966, Blumenfeld appeared in court and obtained default judgment against appellant on the agreement to provide a bonded deferred commitment. After entry of the judgment, appellant Stonecipher obtained Illinois counsel who appeared before the Illinois District Court with Sexton and moved to vacate the default judgment under both Rules 60(b) and 55(b) (2). The motion was denied and no appeal was taken from the default judgment or from the denial of the motion to vacate the judgment. Instead, appellant Stonecipher waited to attack the judgment in Winfield's proceedings to enforce the judgment before the United States District Court of Kansas.\n \n \n 9\n The trial judge, upon the basis of his findings of fact, declined to consider the case under Rule 60(b) and determined that Stonecipher's attack was an independent equitable action for relief from the judgment. He further determined that Stonecipher had deliberately by-passed his legal remedy of appeal from the judgment and the subsequent order denying relief from the judgment under Rules 60(b) and 55(b) (2), both entered in the Northern District of Illinois, and denied any equitable relief.\n \n \n 10\n Stonecipher takes this appeal urging that it was error to deny his motion to set aside the Illinois judgment because: 1) Rule 60(b) imposes on a trial court the power to grant relief from judgments obtained in other United States District Courts provided the grounds for relief stated in the Rule are established; and 2) although appellant appeared in the suit before the Illinois District Court, default judgment was entered against him without giving him three days written notice as required by Rule 55(b) (2), F.R.Civ.P., 28 U.S.C. Both contentions lack merit and we affirm.\n \n \n 11\n Upon considering the first point on appeal, we initially note that appellant characterizes his motion before the trial court as an application for relief pursuant to Rule 60(b). The trial judge declined to treat appellant's motion as one under Rule 60(b) and instead treated the motion as an independent equitable action for relief from the default judgment. Although appellant now contends on appeal that Rule 60(b) imposes in the trial court the power to grant relief from the judgments entered in other United States District Courts, he ignores the point that relief under Rule 60(b) is addressed to the sound discretion of the court.1 Appellant has made no attempt to show an abuse of discretion. On the contrary, it appears that central to the trial judge's exercise of discretion is the fact that appellant deliberately bypassed his legal remedies of appeal from the default judgment and from the rendering court's order denying relief from the judgment.\n \n \n 12\n We agree with the trial judge and absent a showing that he abused his discretion in denying relief under Rule 60(b), we are compelled to likewise treat this case not under Rule 60(b) but as an independent equitable action. Viewing this case as an independent equitable action precludes a determination of the issue posed by appellant as to whether Rule 60(b) is a proper means for attacking a judgment entered by a United States District Court sitting in another state.\n \n \n 13\n As a practical matter, it is not important whether the trial judge considered the attack upon the default judgment under Rule 60(b) or as an independent equitable action. A full evidentiary hearing was had, appellant was permitted to present evidence on every ground asserted, after which the trial judge, in the exercise of his judicial and equitable discretion, denied relief.\n \n \n 14\n Rule 60(b), as amended, specifically preserves the right to attack a judgment by an independent equitable action. This right supersedes the various ancient writs recognized by the common law.2 Generally, such an independent action must show a recognized ground, such as fraud, accident, mistake or the like, for equitable relief and that there is no other available or adequate remedy.3 It must also appear that the situation in which the party seeking relief finds himself is not due to his own fault, neglect or carelessness.4 In this type of action, it is fundamental that equity will not grant relief if the complaining party \"has, or by exercising proper diligence would have had, an adequate remedy at law, or by proceedings in the original action * * * to open, vacate, modify or otherwise obtain relief against, the judgment.\"5 The granting of relief in this unusual type of proceeding lies largely within the discretion of the trial judge.6 An appellate court should not disturb the equitable determination of the trial judge unless it can conclude that the trial judge abused his discretion.\n \n \n 15\n Applying the above principles of law and from the record we decline to disturb the decision of the trial judge.\n \n \n 16\n We deem it appropriate to separately elaborate upon appellant Stonecipher's attack on the default judgment on the grounds that the Illinois District Court did not comply with the notice provision contained in Rule 55(b) (2), F.R.Civ. P., 28 U.S.C. At the outset we note that the trial judge did not make conclusions of law specifically relating to this point although this point was raised after a fashion in appellant's motion to set aside the judgment. Ordinarily we would want the benefit of the trial judge's conclusion on such an issue, but in this case the trial judge made sufficient findings of fact to enable us to dispose of this point.\n \n \n 17\n We perceive appellant's point with regard to Rule 55(b) (2) to be that since the Illinois District Court did not comply with the notice provisions of the Rule and therein violated the fundamental principles of due process, therefore that court lacked the power and jurisdiction to enter a default judgment under Rule 55(b). To support his contention that the default judgment was entered against him in derogation of Rule 55, Stonecipher argues that Sexton served an answer and counterclaim on Blumenfeld, the opposing counsel; that this constitutes an appearance under Rule 55; that Rule 55(b) (2) requires that if a default judgment is sought against a party who has appeared in an action he should be served with written notice at least three days prior to the hearing on such application; and finally that neither Stonecipher nor his counsel Sexton received such notice.\n \n \n 18\n Assuming for the sake of argument, and without so holding, that the facts present here are sufficient to constitute an appearance by Stonecipher in the suit against him in the Northern District of Illinois, the default judgment is not necessarily a void judgment. A procedural defect, such as failure to give notice as required, may be sufficient to afford relief from a default judgment on appeal or for relief under Rule 60(b) or together with other irregularities shown by the facts of a particular case may render the judgment void, however the error should not usually be treated as so serious as to render the judgment void. Such a procedural defect should be considered \"in the light of surrounding circumstances and will at times be harmless.\" 7 Moore's Federal Practice &#182; 60.25[2]. When this issue was presented to the trial judge in the Northern District of Illinois, apparently he rejected it because he did not consider that an appearance had been entered. In addition, from his comments made during the course of the hearing, he could not conclude that the case presented a situation of excusable neglect. The Kansas trial judge in denying relief to Stonecipher put stress upon his failure to pursue his adequate and available remedy of appeal and expressly found that Stonecipher had deliberately bypassed the remedy of appeal. These are proper circumstances to consider in this independent equitable action. We have carefully considered the records of both the Illinois and Kansas Courts and are compelled to the conclusion that appellant now finds himself in this inextricable situation because of inexcusable neglect and his failure thereafter to pursue the adequate and available legal remedy of appeal. This is clearly a sufficient basis for the denial of any equitable relief from the default judgment.\n \n \n 19\n Affirmed.\n \n \n \n Notes:\n \n \n 1\n Thomas v. Colorado Trust Deed Funds, Inc., 366 F.2d 136 (10th Cir. 1966); Abel v. Tinsley, 338 F.2d 514 (10th Cir. 1964)\n \n \n 2\n Oliver v. City of Shattuck, 157 F.2d 150 (10th Cir. 1946)\n \n \n 3\n 49 C.J.S. Judgments &#167; 341b\n \n \n 4\n Ibid\n \n \n 5\n 49 C.J.S. Judgments &#167; 343a\n \n \n 6\n Moldwood Corporation v. Stutts, 410 F.2d 351 (5th Cir. 1969); Mannke v. Benjamin Moore &amp; Company, 375 F.2d 281 (3rd Cir. 1967); Hiern v. St. Paul-Mercury Indemnity Company, 262 F.2d 526 (5th Cir. 1959)See 49 C.J.S. Judgments &#167; 341a.\n \n \n ", "ocr": false, "opinion_id": 291427 } ]
Tenth Circuit
Court of Appeals for the Tenth Circuit
F
USA, Federal
238,720
Brown, Hutcheson, Jones
1956-02-23
false
indiana-lumbermens-mutual-insurance-company-v-j-d-janes
null
Indiana Lumbermens Mutual Insurance Company v. J. D. Janes
INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. J. D. JANES, Appellee
Phil Stone, James Stone & Sons, Oxford, Miss., for appellant., Chester L. Sumners, Smallwood, Sum-ners & Hickman, Oxford, Miss., Smith & Hurdle, Holly Springs, Miss., for appel-lee.
null
null
null
null
null
null
null
null
null
null
14
Published
null
<parties data-order="0" data-type="parties" id="b552-9"> INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant, v. J. D. JANES, Appellee. </parties><br><docketnumber data-order="1" data-type="docketnumber" id="b552-11"> No. 15609. </docketnumber><br><court data-order="2" data-type="court" id="b552-12"> United States Court of Appeals Fifth Circuit. </court><br><decisiondate data-order="3" data-type="decisiondate" id="b552-13"> Feb. 23, 1956. </decisiondate><br><attorneys data-order="4" data-type="attorneys" id="b554-6"> <span citation-index="1" class="star-pagination" label="502"> *502 </span> Phil Stone, James Stone &amp; Sons, Oxford, Miss., for appellant. </attorneys><br><attorneys data-order="5" data-type="attorneys" id="b554-7"> Chester L. Sumners, Smallwood, Sum-ners &amp; Hickman, Oxford, Miss., Smith &amp; Hurdle, Holly Springs, Miss., for appel-lee. </attorneys><br><p data-order="6" data-type="judges" id="b554-8"> Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges. </p>
[ "230 F.2d 500" ]
[ { "author_str": "Brown", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/230/230.F2d.500.15609_1.html", "author_id": null, "opinion_text": "230 F.2d 500\n INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY, Appellant,v.J. D. JANES, Appellee.\n No. 15609.\n United States Court of Appeals Fifth Circuit.\n Feb. 23, 1956.\n \n Phil Stone, James Stone &amp; Sons, Oxford, Miss., for appellant.\n Chester L. Sumners, Smallwood, Sumners &amp; Hickman, Oxford, Miss., Smith &amp; Hurdle, Holly Springs, Miss., for appellee.\n Before HUTCHESON, Chief Judge, and JONES and BROWN, Circuit Judges.\n BROWN, Circuit Judge.\n On a standard liability insurance policy issued in Virginia to J. L. Forbes, record title owner, as the named assured, the District Court held the insurer liable under the Omnibus Clause1 and the Clause Paramount of the Virginia Statute2 for an accident in which the insured vehicle was being driven by Cavanaugh with the permission and consent of George Forbes, for whose use the car had been purchased by J. L., his brother.\n The decisive facts found by the District Court are simple: in 1950 when the automobile was acquired, J. L., a resident of Newport News, Virginia, purchased it, in his name, for the use of his brother, George, then a minor and, as such, not able to finance it. Title was in J. L. Forbes with a chattel mortgage by him to a Virginia bank. George was to, and did, make the finance payments on the car while J. L. paid for the insurance with the understanding that George was to repay him for this when he could. In January 1952, when the original policy on the car was issued by appellant, and George had since become of age, J. L. advised the insurer's agent that the car was going to be used by his brother, George, and would be kept by him on the Marine Base near Memphis. In August 1952, to comply with rules of the Marine Base, J. L. gave a specific written permission3 to his brother.\n \n \n 1\n A second, renewal policy was issued in January 1953. On March 6, 1953, George loaned the automobile to his fellow-marine Cavanaugh, with the resulting collision in Mississippi with Janes' truck and judgment4 against Cavanaugh.\n \n \n 2\n Arguing first that the insurance contract was void for fraud of J.L. in misrepresenting that (a) George was an adult, and (b) J.L. was the true owner of the vehicle, the insurer also stoutly contends that J. L. was not the owner, hence had no insurable interest, so that no insurance was available to George regardless of the permission which J.L. might have given him; and, in any case, if J.L. was an assured, he did not clothe George with authority to permit others to use the vehicle and thereby extend coverage to successive users. We think none of these has merit.\n \n \n 3\n First, the purchase of this automobile under these circumstances was a perfectly legitimate, good faith transaction. Since J.L. was liable, personally, on the financing notes and contract, and had himself a personal liability to pay the insurance premiums, it was a proper thing for him to retain the record title and legal ownership of the vehicle. This gave him an ample insurable interest.\n \n \n 4\n It is equally plain that J.L. was purchasing the car for the use of his brother, George, and it was placed under his control. The nature of the permission impliedly granted by J.L., the legal owner of the vehicle, is, therefore, to be measured in the light of the purpose for which the car was turned over to George. Here, with ample grounds, the District Court found that J.L. intended that George was to use the car as though it were his own. Of course, in this automobile age, a common thing for an automobile owner is to loan the car to friends, business associates, acquaintances, and others for personal use of the permittee wholly unrelated to the business or interest of the vehicle owner. Since it was intended that George should use the car freely as though it were his, it was a normal and expected thing for him to lend it to his fellow-marine.\n \n \n 5\n If this is to extend coverage to permittees, third of fourth removed, the insurer need not recall that the policy is its contract in words chosen by it, the scope of which is sufficient to clothe the named insured with full authority automatically to make the insurance available to all who might use the car, provided only that his intention is adequately reflected concerning the right of the permittee and successive permittees to allow others to use the vehicle. The permission can be implied as well as expressed. Procuring the car for George to enjoy as his own and permitting him to use it freely at a Base 900 miles away, is quite sufficient to justify the conclusion that George had J.L.'s consent to permit anyone he chose to use or drive the automobile. Nor, do we think, that the written permission either did, or was intended to, restrict or withdraw the full scope of this permission. It was to satisfy the requirements of the military, presumably for instances such as this in which the serviceman desired to operate, on the base, a vehicle owned by and registered in the name of another.\n \n \n 6\n Applying, as we must, Virginia principles, these conclusions are fully supported5 by Virginia decisions giving full voice to the statutory Clause Paramount.\n \n \n 7\n There was no basis at all for the charge of fraud based on George's minority, nor, under the findings, was there a misrepresentation as to the ownership which in fact existed in J.L. J.L. claimed to be the owner. He was in law the owner and so he was in fact. As an owner for reasons entirely sufficient and legitimate, he purchased the automobile for the use of his brother who was expected to pay the cost of it, but it began, it continued, and it terminated as his, not George's property. Moreover, after all of these facts were fully known to the insurer as a consequence of the investigation of the Janes collision in March 1953, and after notice to J.L. Forbes of cancellation of the policy in April had become effective, the insurer, by paying a substantial amount to him as the collision loss sustained by the insured vehicle, affirmed the existence of a valid contract between it and J.L.; New Jersey Rubber Co. v. Commercial Union Assur. Co. of London, 64 N.J.L. 580, 46 A. 777; 29 American Jurisprudence, Insurance, &#167;&#167; 874, 876, Cf. Home Ins. Co. of New York v. Hightower, 5 Cir., 22 F.2d 882, 62 A.L.R. 620, whatever might have been the significance of the retention of earned premiums both for the current and the original, expired, policy, cf. American Cent. Ins. Co. v. Antram, 86 Miss. 224, 38 So. 626, 628; Stonewall Life Ins. Co. v. Cook, 165 Miss. 619, 144 So. 217; 29 American Jurisprudence &#167;&#167; 861, 862.\n \n \n 8\n Supported by findings not demonstrated to be clearly erroneous, Federal Rules of Civil Procedure, rule 52, 28 U.S.C.A.; Galena Oaks Corp. v. Scofield, 5 Cir., 218 F.2d 217, the judgment was right and is\n \n \n 9\n Affirmed.\n \n \n \n 1\n 'III Definition of Insured: With respect to the insurance for bodily injury liability and for property damage liability the unqualified word 'insured' includes the named insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the named insured or with his permission. * * *.'\n \n \n 2\n Code of Virginia, 1950, &#167; 38-238 (now Code 1950, &#167; 38.1-380): '* * * No such policy shall be issued or delivered in this State, to the owner of a motor vehicle, by any corporation or other insurer authorized to do business in this State, unless there shall be contained within such policy a provision insuring such owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner * * *.'\n \n \n 3\n \n 'August 29, 1952\n 'Dear Sir:\n To Whom This May Concern, I hereby give my consent for my brother, George Winston Forbes, to drive my car, a 1946 Ford, 5-passenger coupe, whereever he wishes.\n Yours truly, (s) J. L. Forbes'\n This was acknowledged before a notary public. This consent and the insurance policy was required to obtain a permit for use of the automobile on the Base.\n \n \n 4\n Janes obtained judgment in a Mississippi court against Cavanaugh for $3,000.00. This suit was reopened and defended by appellant under a non-waiver agreement\n This satisfied the 'No-Action' clause requiring that '* * * The insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company * * *,' if under, the Omnibus Clause and the Virginia Statute, Cavanaugh was an 'insured.'\n \n \n 5\n It is aptly summarized by a court familiar with Virginia jurisprudence in American Auto Ins. Co. v. Fulcher, 4 Cir., 201 F.2d 751, 756: 'It is settled law that the question of implied permission is one of fact, to be resolved by the jury or the court sitting as the trier of fact. Moreover, the Virginia decisions make it clear that the statutes applicable to the present controversy, being remedial in nature, are to be liberally construed to subserve the public policy manifest therein. See Fidelity &amp; Casualty Co. of New York v. Harlow, 191 Va. 64, 68, 59 S.E.2d 872, 874; State Farm Mutual Automobile Insurance Co. v. Cook, 186 Va. 658, 666, 43 S.E.2d 863, 867, 5 A.L.R.2d 594. It is also evident that, to support liability predicated upon implied permission, it is not necessary that the owner of the automobile be aware of the identity of the person operating it. Robinson v. Fidelity &amp; Casualty Co. of New York, 190 Va. 368, 57 S.E.2d 93; or know of the particular use being made of it at the time of the accident. Liberty Mutual Ins. Co. v. Tiller, 189 Va. 544, 53 S.E.2d 814.'\n See also Lumbermens Mutual Casualty Co. v. Indemnity Ins. Co., 186 Va. 204, 42 S.E.2d 298, 302, and Hinton v. Indemnity Ins. Co., 175 Va. 205, 8 S.E.2d 279, 283, which suggests that the statutory term 'permission, express or implied,' is broader than 'consent' since, '* * * A permitted act may be one not specifically prohibited as contrasted to an act affirmatively and specifically authorized * * *'; Harrison v. Carroll, 4 Cir., 139 F.2d 427; United Services Automobile Ass'n v. Preferred Accident Insurance Co. of N.Y., 10 Cir., 190 F.2d 404; cf. Pennsylvania Thresherman &amp; Farmers' Mutual Casualty Ins. Co. v. Crapet, 5 Cir., 199 F.2d 850.\n The statute, while liberally construed, yet requires permission and where, as a fact, none is given or it is exceeded, coverage is likewise restricted: e.g., Hartford Accident &amp; Indemnity Co. v. Peach, 193 Va. 260, 68 S.E.2d 520; United States Casualty Co. v. Bain, 191 Va. 717, 62 S.E.2d 814; Lumbermens Mutual Casualty Co. v. Indemnity Ins. Co. of North America, supra; Sordelett v. Mercer, 185 Va. 823, 40 S.E.2d 289; Jordan v. Shelby Mutual Plate Glass &amp; Casualty Co., 4 Cir., 142 F.2d 52; Continental Cas. Co. v. Padgett, 4 Cir., 219 F.2d 133.\n \n \n ", "ocr": false, "opinion_id": 238720 } ]
Fifth Circuit
Court of Appeals for the Fifth Circuit
F
USA, Federal
572,122
null
1991-11-12
false
parker-lillie-e-v-king-gwendolyn
null
Parker (Lillie E.) v. King (Gwendolyn)
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "948 F.2d 1298" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/948/948.F2d.1298.89-8540.html", "author_id": null, "opinion_text": "948 F.2d 1298\n Parker (Lillie E.)v.King (Gwendolyn)\n NO. 89-8540\n United States Court of Appeals,Eleventh Circuit.\n NOV 12, 1991\n N.D.Ga., 935 F.2d 1174\n \n 1\n DENIALS OF REHEARING EN BANC.\n \n ", "ocr": false, "opinion_id": 572122 } ]
Eleventh Circuit
Court of Appeals for the Eleventh Circuit
F
USA, Federal
657,760
null
1993-11-09
false
united-states-v-teresa-goolesby
null
United States v. Teresa Goolesby
null
null
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
null
[ "9 F.3d 1548" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/9/9.F3d.1548.93-5085.html", "author_id": null, "opinion_text": "9 F.3d 1548\n NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.UNITED STATES of America, Plaintiff-Appellee,v.Teresa GOOLESBY, Defendant-Appellant.\n No. 93-5085.\n United States Court of Appeals, Sixth Circuit.\n Nov. 9, 1993.\n \n Before: KENNEDY, SILER, and BATCHELDER, Circuit Judges.\n PER CURIAM.\n \n \n 1\n Defendant Teresa Goolesby appeals her conviction for possession of marijuana with intent to distribute it in violation of 21 U.S.C. &#167; 841(a)(1) and aiding and abetting the use or carrying of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. &#167;&#167; 2 and 924(c)(1). She argues that the stop of her vehicle was pretextual and thus violative of the Fourth Amendment; she contends that her motion to suppress the evidence found in her car therefore should have been granted. Finding that her argument must be rejected in light of the recent en banc decision of this court in United States v. Ferguson, No. 91-6316, 1993 U.S.App. Lexis 28306 (6th Cir. Nov. 1, 1993) (en banc), we affirm.\n \n \n 2\n * In the early morning hours of July 14, 1990, Memphis Police Officer Charles Cox, operating a stationary radar gun, clocked a black 1978 BMW with out-of-state license plates traveling at 53 m.p.h. in a 45 m.p.h. zone. Officer Cox pulled the BMW over and stopped his patrol car behind it. Driving the car was the appellant Teresa Goolesby; with her were her common law husband Jacob Goolesby and her nine-year-old daughter. Cox exited his car and approached the BMW, and Teresa Goolesby got out of her car and met Cox in between the two vehicles.\n \n \n 3\n Cox asked Teresa for her driver's license. She explained that she had lost it and presented Cox with a letter from the State of North Carolina stating that Teresa Bailey1 was a validly licensed driver and listing her driver's license number. Cox then escorted Teresa to his squad car and asked her for a picture identification. When she failed to produce one, he informed her that he would have to arrest her for driving without a license because she could not produce a picture ID to match the name Teresa Bailey, whom Cox had confirmed was a validly licensed driver in North Carolina.\n \n \n 4\n Cox decided to speak to Jacob Goolesby, who was still seated in the BMW, about this matter. Cox approached, told Jacob that he was going to arrest Teresa for driving without a valid license, and asked Jacob if he had any identification for himself or his wife. Jacob said that he did not have any identification for his wife, whom he referred to as Teresa Goolesby, but he did produce his own valid license in the name of Jacob Goolesby. While talking to Jacob, Cox detected the odor of marijuana emanating from the car. Cox asked Jacob if he had any illegal contraband in the car. Jacob responded that he was carrying a pistol to protect his family. Cox asked Jacob to get out of the car and Cox patted him down for weapons. Cox felt a bulge in Jacob's pants pocket. When asked what it was, Jacob admitted that it was marijuana. Cox then placed him under arrest.\n \n \n 5\n Incident to Jacob's arrest, Cox searched the car. Inside the car, he found a green duffel bag containing marijuana. Cox then searched the trunk and found five more bags of marijuana. In all, approximately 192 pounds of marijuana were seized from the car.\n \n \n 6\n Both Teresa and Jacob were tried by a jury and convicted. Each brought a separate appeal.\n \n II\n \n 7\n Teresa Goolesby's primary argument on appeal is that Officer Cox's stopping of her car for such a minor traffic violation was a mere pretext in order to investigate more serious criminal activity. In addition to being a Memphis Police officer, Cox was a member of the Interstate Crime Interdiction Unit and had been given special training in identifying the types of vehicles and persons most likely to be transporting drugs. Teresa asserts that Cox must have been simply pursuing his suspicions about drugs when he stopped her car, because a reasonable police officer would not have stopped her for going 53 m.p.h. in a 45 m.p.h. zone.\n \n \n 8\n This argument can be disposed of quickly. Our circuit, sitting en banc, recently adopted a new standard for analyzing stops that are alleged to be pretextual. In United States v. Ferguson, No. 91-6316, 1993 U.S.App. Lexis 28306 (6th Cir. Nov. 1, 1993) (en banc), we held that as long as an \"officer has probable cause to believe that a traffic violation has occurred or was occurring, the resulting stop is not unlawful and does not violate the Fourth Amendment.\" Id. at * 21. This bright-line standard is not concerned with whether this officer or a \"reasonable\" officer would have stopped the car absent some other motivation; the focus is on whether the officer had probable cause to believe that an offense--even a \"minor\" traffic violation--had been committed. Id. Clearly, Cox had probable cause to believe an offense had been committed, because he clocked Teresa going 53 m.p.h. in a 45 m.p.h. zone. Therefore, even assuming that Teresa could show that Cox harbored particular suspicions about the Goolesby BMW, she cannot prevail.\n \n \n 9\n As a secondary argument, Teresa asserts that her arrest was improper because she had a valid driver's license and Tennessee law does not require that a non-resident driver have a driver's license with a picture identification. We need not resolve this question, for Teresa faces a more difficult problem: she cannot show that the evidence she seeks to suppress was \"come at by exploitation of\" her arrest. Wong Sun v. United States, 371 U.S. 471, 488 (1963). The evidence admitted against her was not \"fruit of the [allegedly] poisonous tree,\" but instead was properly obtained \"by means sufficiently distinguishable\" from her allegedly illegal arrest, that being the search incident to Jacob's lawful arrest for possession of marijuana. Id; see also Segura v. United States, 468 U.S. 796, 813-816 (1984). Thus, the evidence was admissible, and Teresa's motion to suppress was properly denied.\n \n III\n \n 10\n For the foregoing reasons, Teresa Gollesby's conviction is AFFIRMED.\n \n \n \n 1\n \"Bailey\" was Teresa's maiden name\n \n \n ", "ocr": false, "opinion_id": 657760 } ]
Sixth Circuit
Court of Appeals for the Sixth Circuit
F
USA, Federal
1,172,351
Kaul
1974-12-07
false
state-v-price
Price
State v. Price
State of Kansas, Appellee, v. Clifford D. Price, Appellant
Kenneth W. Pringle, of Wichita [Court Appointed], argued the cause and was on the brief for the appellant., Clifford L. Bertholf, Assistant District Attorney, argued the cause, and Vern Miller, Attorney General; Keith Sanborn, District Attorney; and Steven C. Sherwood, Assistant District Attorney, were with him on the brief for the appellee.
null
null
null
null
null
null
null
null
null
null
27
Published
null
<docketnumber id="b748-4"> No. 47,370 </docketnumber><br><parties id="b748-5"> State of Kansas, <em> Appellee, </em> v. Clifford D. Price, <em> Appellant. </em> </parties><br><citation id="b748-6"> (529 P. 2d 85) </citation><decisiondate id="A6W"> Opinion filed December 7,1974. </decisiondate><br><attorneys id="b748-12"> <em> Kenneth </em> W. <em> Pringle, </em> of Wichita [Court Appointed], argued the cause and was on the brief for the appellant. </attorneys><br><attorneys id="b748-13"> <em> Clifford L. Bertholf, </em> Assistant District Attorney, argued the cause, and <em> Vern Miller, </em> Attorney General; <em> Keith Sanborn, </em> District Attorney; and <em> Steven C. Sherwood, </em> Assistant District Attorney, were with him on the brief for the appellee. </attorneys>
[ "529 P.2d 85", "215 Kan. 718" ]
[ { "author_str": "Kaul", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 4476, "opinion_text": "\n215 Kan. 718 (1974)\n529 P.2d 85\nSTATE OF KANSAS, Appellee,\nv.\nCLIFFORD D. PRICE, Appellant.\nNo. 47,370\nSupreme Court of Kansas.\nOpinion filed December 7, 1974.\nKenneth W. Pringle, of Wichita [Court Appointed], argued the cause and was on the brief for the appellant.\nClifford L. Bertholf, Assistant District Attorney, argued the cause, and Vern Miller, Attorney General; Keith Sanborn, District Attorney; and Steven C. Sherwood, Assistant District Attorney, were with him on the brief for the appellee.\nThe opinion of the court was delivered by\nKAUL, J.:\nDefendant, Clifford D. Price, appeals from convictions by a jury of aggravated burglary (K.S.A. 1973 Supp. 21-3716) and rape (K.S.A. 1973 Supp. 21-3502).\nThe events giving rise to the charges against defendant occurred during the evening of December 19, 1972, at the Wichita apartment of Dean Lee McDonald, which was also occupied by Debra Dirks, who was identified as McDonald's fiancee. McDonald, who testified as a state witness, testified that he was in fear of harm from defendant by reason of two encounters with defendant at the McDonald apartment on two occasions prior to the night in question. The first of these was described by McDonald as an uninvited visit by defendant and codefendant, William Mewborn, who long overstayed their welcome. The second encounter came about after McDonald discovered that some articles which he had stored for *719 defendant — at his request — were stolen property. After McDonald notified the police, defendant was arrested in connection with the stolen property.\nOn the night in question McDonald observed defendant drive up to the apartment in Mewborn's automobile. McDonald locked the door to the apartment, told Miss Dirks to hide, then slipped out a rear window of the apartment, went to a neighbor's house, and called the police. After McDonald left the apartment, defendant and Mewborn apparently forced open the door and entered the apartment. In the meantime, Miss Dirks had locked herself in the bathroom. She testified that defendant, after locating her whereabouts, forced the lock on the bathroom door and by force took her into the bedroom, removed part of her clothing, and raped her. When the police entered the apartment they found Mewborn sitting in the front room and the bathroom door with its latch broken off. One of the officers attempted to enter the bedroom, but was delayed by defendant holding the door. After a short struggle the officers gained entrance to the bedroom and described defendant as holding his pants just above his knees and observed Miss Dirks lying on the bed partially unclothed.\nMewborn was charged with aggravated burglary and found not guilty by a jury. Defendant was charged with aggravated burglary, rape, and possession of marijuana. The marijuana count was dismissed prior to trial.\nDefendant raises numerous issues on appeal. His first point consists of a two-pronged attack on the reasonable doubt instruction given by the trial court. He first argues that no instruction should have been given defining reasonable doubt and cites State v. Larkin, 209 Kan. 660, 498 P.2d 37, in support of his argument.\nIn several recent cases this court has stated that \"reasonable doubt\" are words of common understanding and an attempt to give a jury a more explicit definition thereof is unnecessary where the jury has been otherwise fully instructed concerning burden of proof, presumption of innocence and the necessity of proof beyond a reasonable doubt. (State v. Larkin, supra; and PIK [Criminal] 52.04, p. 49.) However, this court has never held that giving an instruction defining reasonable doubt amounted to prejudicial error. In the recent case of State v. Winston, 214 Kan. 525, 520 P.2d 1204, we reiterated a statement made in the Larkin case that the words *720 \"reasonable doubt\" are clear in their meaning. In connection with the point raised by defendant here, we further stated in Winston:\n\"Although the above premise is sound it does not follow that prejudicial error flows therefrom. This court will not reverse a conviction merely because a reasonable doubt instruction was given....\" (p. 530.)\nDefendant further contends that the court, having elected to instruct on a definition of reasonable doubt, committed error in refusing his instruction and submitting its own definition of reasonable doubt.\nDefendant requested the following instruction:\n\"You are instructed that before you can find a defendant guilty of any offense that you must find that he is guilty beyond a reasonable doubt and that a reasonable doubt is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they can not say that they feel an abiding conviction to a moral certainty of the truth of the charge; that is, to a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it.\"\nAn instruction in essentially the same language was approved in State v. Smith, 84 Kan. 646, 114 Pac. 1074.\nThe trial court instructed on proof beyond a reasonable doubt in the following language:\n\"As you have been instructed, before you can find the defendant guilty of any offense, you must be satisfied of his guilt beyond a reasonable doubt. Stated another way, if you have a reasonable doubt as to the existence of any on the elements of the offense, you must acquit the defendant.\n\"By requiring the State to prove their case beyond a reasonable doubt is not meant that they are required to prove the case to a mathematical or scientific certainty. Few, if any, things in affairs of men are capable of such proof. All that is required is that the proof erase from the minds of the jury, any reasonable doubt as to the guilt of the defendant.\"\nDefendant objects to the trial court's instruction because he says it instructed as to what a \"reasonable doubt\" is not, rather than what it is. We find no error in such an instruction if it tends to aid the jury in arriving at a proper verdict. A similar instruction drafted in a negative concept was approved in State v. McLaughlin, 207 Kan. 594, 485 P.2d 1360. We further note that in the instant case the defendant has not seen fit to place the other instructions in the record. It is, therefore, impossible for us to determine if there was any prejudicial error in the instruction given. We must review the instructions as a whole. Since the other instructions were not set out in the record we are precluded from reviewing the isolated *721 instruction to which the alleged error was directed. (State v. Ireton, 193 Kan. 206, 392 P.2d 883.)\nIn connection with the point under consideration, we further observe that this court has considered reasonable doubt instructions given in various language and, although criticizing the language used in certain instances, we have seldom found reversible error. (See Hatcher's Kansas Digest, [Rev. Ed.], 1974 Supp. to Vols. 1-3, Criminal Law \"Reasonable Doubt\", § 333.) As indicated in the Winston and Larkin opinions and as suggested by the PIK [Criminal] Committee Comment, we believe the better practice, and that which is less likely to confuse the jury, is to fully instruct concerning burden of proof, presumption of innocence, and reasonable doubt, as set forth in PIK [Criminal], 52.02, p. 47, and omit a further instruction attempting to define reasonable doubt.\nDefendant contends that the trial court committed reversible error in overruling his motion for judgment of acquittal because of insufficient evidence. He calls our attention to K.S.A. 1973 Supp. 21-3716 which reads:\n\"Aggravated burglary is knowingly and without authority entering into or remaining within any building ... in which there is some human being, with intent to commit a felony or theft therein.\"\nHe then suggests there was insufficient evidence to convict the defendant of the above offense because there was no evidence that the defendant entered the premises with knowledge there was someone present inside. Simply stated, must the accused have knowledge of the presence of someone inside the premises at the time of entering?\nDefendant's contentions are without merit. Clearly, knowledge of entry and intent to commit a theft or a felony is required by the statute, but there is no requirement of knowledge that there was someone within the building at the time the entry was made. K.S.A. 1973 Supp. 21-3716 provides a more severe offense, aggravated burglary, where the burglary is committed in a structure in which there is some human being. Knowledge of the presence at the time of entering the building is not necessary. (State v. Lora, 213 Kan. 184, 515 P.2d 1086.)\nWe find no merit in defendant's contention the trial court committed reversible error in granting in part the state's motion to endorse additional witnesses during the course of the trial. During the course of the trial the state moved to endorse three additional *722 witnesses. The court permitted the endorsement of but one, George Kintzell, whose name had been mentioned by the state during voir dire examination of the jury and during the preliminary hearing. It also appears that the trial court, on the day before the hearing, informed defense council to anticipate the ruling which would allow the endorsement. It appears that neither at the time of the motion nor during the taking of the testimony was an objection made by defendant.\nThis court in considering K.S.A. 1973 Supp. 22-3201 (6), [Amended L. 1974, Ch. 152, Sec. 1], and its predecessor K.S.A. 62-802, dealing with the endorsement of additional names of witnesses on the information during trial has held that the matter rests within the sound discretion of the trial court, and its ruling will not be disturbed in the absence of abuse. (State v. Blocker, 211 Kan. 185, 505 P.2d 1099.)\nDefendant next contends the trial court committed reversible error in overruling defendant's motion for arrest of judgment because he was not properly charged with the crime of which he was convicted. Defendant was charged with:\n\"... knowingly and without authority and with the intent to commit a felony and theft therein, enter into a building, ... occupied at the time by Debra J. Dirks;\" (Emphasis supplied.)\nDefendant was charged with the crimes of aggravated burglary and rape. The fact that the information used the phraseology \"felony and theft\" as opposed to \"felony or theft\" does not make the acts any less criminal, neither does it make the information defective for failure to charge a crime. The fact that a defendant may intend both a felony and a theft pursuant to an illegal entry does not remove his act from the scope of the burglary statute.\nWe have considered the other related questions raised by defendant and find them to be without merit.\nThe defendant's contention that the trial court committed reversible error in permitting the state, over defendant's objection, to cross-examine a defense witness concerning a prior conviction for robbery which cross-examination was solely for the purpose of impeaching the witness's credibility is without merit.\nDefendant calls our attention to K.S.A. 60-421 which provides insofar as material here:\n\"Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility....\"\n*723 In Tucker v. Lower, 200 Kan. 1, 434 P.2d 320, we said:\n\"The crime of larceny, or of participating therein by knowingly receiving stolen property, generally involves a wilful injury to another person or his property and a considered disregard for such injury. To steal is understood to be dishonest, shows a lack of integrity in principle and a lack of fairness....\" (p. 5.)\nBy statutory definition the taking of property from another is an ingredient of robbery (K.S.A. 1973 Supp. 21-3426). Like burglary and larceny, robbery falls within the category of crimes which involve dishonesty. (Gard, Kansas Code of Civil Procedure [Author's Commentary], § 60-421, pp. 392-393.)\nDefendant in closing makes the rather ingenuous argument that the statute K.S.A. 1973 Supp. 21-3502 so defines rape that it can be committed only by a man and thus amounts to unconstitutional classification.\nA classification based upon sex can properly be made if it meets certain standards. (Wark v. State [Me. 1970], 266 A.2d 62.) We believe the sexual classification appearing in K.S.A. 1973 Supp. 21-3502 is not arbitrary, but reflects a rational and justifiable distinction. It is unnecessary to engage in an extended dissertation on the physiological differences between sexes, suffice it to say they exist. One of the more obvious reasons for the existence of our statute is to protect women against sexual attack and forced pregnancy. In view of the fact that only members of the female sex are susceptible to pregnancy as a result of the conduct proscribed by this statute, the reasonableness of the classification is apparent. (Green v. State [Miss. 1972], 270 So.2d 695; In re W.E.P. [D.A. App. 1974], 318 A.2d 286; and State v. Ewald, 63 Wis.2d 165, 216 N.W.2d 213.)\nA careful examination of the record discloses no trial errors which would justify the granting of a new trial.\nThe judgment is affirmed.\n", "ocr": false, "opinion_id": 1172351 } ]
Supreme Court of Kansas
Supreme Court of Kansas
S
Kansas, KS
879,620
Gulbrandson, Harrison, Hunt, Morrison, Sheehy, Turnage, Weber
1987-03-31
false
frazer-school-district-no-2-v-forsness
Forsness
Frazer School District No. 2 v. Forsness
FRAZER SCHOOL DISTRICT NO. 2, Appellant and Respondent, v. LAYNE A. FORSNESS; Ed Argenbright, Superintendent of Public Instruction; Alfreda Drabbs, Valley County Superintendent of Schools; And Delores Hughes, Substitute Hearings Officer, Respondents and Appellant
John W. Larson, Office of Public Instruction, Helena, Gallagher, Archambeault & Knierim, G.T. Archambeault, Glasgow, for respondents and appellants., James D. Rector, Glasgow, for appellant and respondent.
null
null
null
null
null
null
null
Submitted on Briefs Feb. 13, 1987.
null
null
0
Published
null
<parties id="b268-3"> FRAZER SCHOOL DISTRICT NO. 2, Appellant and Respondent, <em> v. </em> LAYNE A. FORSNESS; Ed Argenbright, Superintendent of Public Instruction; Alfreda Drabbs, Valley County Superintendent of Schools; and Delores Hughes, Substitute Hearings Officer, Respondents and Appellant. </parties><br><docketnumber id="b268-4"> No. 86-511. </docketnumber><br><otherdate id="b268-5"> Submitted on Briefs Feb. 13, 1987. </otherdate><decisiondate id="ASH"> Decided March 31, 1987. </decisiondate><br><citation id="b268-6"> 734 P.2d 1218. </citation><br><attorneys id="b269-4"> <span citation-index="1" class="star-pagination" label="245"> *245 </span> John W. Larson, Office of Public Instruction, Helena, Gallagher, Archambeault &amp; Knierim, G.T. Archambeault, Glasgow, for respondents and appellants. </attorneys><br><attorneys id="b269-5"> James D. Rector, Glasgow, for appellant and respondent. </attorneys>
[ "226 Mont. 244", "734 P.2d 1218" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 5, "download_url": "http://searchcourts.mt.gov/getDocument?vid={7F3246C5-7D47-42AD-9590-02A4BE2CC487}", "author_id": null, "opinion_text": " No. 86-511\n IN THE SUPREME COURT OF THE STATE OF MONTANA\n 1987\n\n\nFRAZIER SCHOOL DISTRICT NO. 2,\n Appellant and Respondent,\n -vs-\nLAYNE A. FORSNESS; ED ARGENBRIGHT,\nSuperintendent of Public Instruction;\nALFREDA DRABBS, Valley County Super-\nintendent of Schools; and DELORES\nHUGHES, Substitute Hearings Officer,\n Respondents and Appellants.\n\n\nAPPEAL FROM: District Court of the Fourteenth Judicial District,\n In and for the County of Valley,\n The Honorable LeRoy McKinnon, Judge presiding.\nCOUNSEL OF RECORD:\n For Appellant:\n John W. Larson, Office of Public Instruction, Helena,\n Montana\n Gallagher, Archambeault & Knierim; G. T. Archambeault,\n Glasgow, Montana\n For Respondent:\n James D. Rector, Glasgow, Montana\n\n\n\n Submitted on Briefs: Feb. 13, 1987\n Decided: March 31, 1987\n\nFiled : MAR 3 11981\n\fMr. Justice Frank B. Morrison, Jr. delivered the Opinion of\nthe Court.\n\n This is an appeal from the September 29, 1986, order of\nthe Seventeenth Judicial District Court reversing a decision\nof the State Superintendent of Public Instruction which\nallowed a tuition transfer for appellant Layne Forsness. We\naffirm.\n Appellant is the father of an elementary student,\nBrandon Forsness. The Forsness family resides within the\nFrazer school district, but Mr. Forsness desires to have\nBrandon attend school in Wolf Point. Brandon' s tuition\napplication was granted by the Frazer School Board for\n1983-84 permitting his attendance in Wolf Point. The\nfollowing year, the School Board denied Brandon's tuition\ntransfer request.\n Mr. Forsness appealed the Board's decision to the Valley\nCounty Superintendent of Schools. Following hearing, the\ndecision was affirmed by presiding hearings officer, Dolores\nHughes, the Phillips County Superintendent of Schools. On\nappeal to the State Superintendent of Public Instruction, the\ndecision was reversed. The Frazer School Board appealed the\norder of the State Superintendent to the District Court. The\nDistrict Court reversed and reinstated the decision of the\nFrazer School Board denying a tuition transfer. Mr. Forsness\nappeals the District Court order and raises the following\nissues:\n 1. Whether the District Court complied with 55 2-4-623\nand 704, MCA?\n 2. Whether the decision of the County Superintendent\nviolated the Montana Administrative Procedures Act and is\ncontrary to law?\n\f The case before us is a companion case to Frazer School\nDistrict No. 2 v. Flynn (Mont. 19871, - P.2d I 44\nSt.Rep. 248. The issues are identical, and our holding in\nFlynn, supra, is dispositive of this appeal.\n In Flynn, supra, we found that pursuant to Rule\n10.6.125, Administrative Rules of Montana, the State\nSuperintendent may not substitute his judgment for that of\nthe County Superintendent as to the weight of the evidence on\nquestions of fact. In the present case, we find the State\nSuperintendent violated this provision and the District Court\nwas correct in reinstating the decision of the County\nSuperintendent.\n The Frazer School Board has broad discretionary\nauthority under 20-5-302, MCA, to permit a tuition\ntransfer. The Board denied Brandon Forsness' application.\nThe County Superintendent considered all the evidence and\nfound the Board properly exercised its discretion under\nS 20-5-302, MCA, in denying the Forsness application. The\nState Superintendent reversed, finding the Board's reasons\nfor denying the application to be a change in the composition\nof the Frazer School Board and a change in the bus route. As\nin Flynn, supra, we find the State Superintendent exceeded\nhis authority by substituting his opinion for that of the\nFrazer School Board and the County Superintendent.\n The District Court is affirmed.\n\n\n\nWe Concur:\n I\n\fJustices\n\fMr. Justice John C. Sheehy, dissenting:\n\n\n Again I dissent, as I did in the companion case, Frazier\nSchool District No. 2 v. Flynn (Nont. 1987), 732 P.2d 409, 44\nSt.Rep. 248, and for the same reasons. Both of these\ndecisions severely limit the statutory discretionary power\nlodged in the Superintendent of Public Instruction on matters\nof controversy appealed to the Superintendent under Section\n20-3-107, MCA.\n -.\n i\n s\n . ,\n 1\n 4 .\n -'., , Jgu/~~~-\n Justice\n L\nI concur in the foregoing dissent.\n\n\n\n Justice William E. Hunt, Sr.\n\f", "ocr": false, "opinion_id": 879620 }, { "author_str": "Morrison", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. JUSTICE MORRISON\ndelivered the Opinion of the Court.\nThis is an appeal from the September 29,1986, order of the Seventeenth Judicial District Court reversing a decision of the State Superintendent of Public Instruction which allowed a tuition transfer for appellant Layne Forsness. We affirm.\nAppellant is the father of an elementary student, Brandon Forsness. The Forsness family resides within the Frazer school district, but Mr. Forsness desires to have Brandon attend school in Wolf Point. Brandon’s tuition application was granted by the Frazer School Board for 1983-84 permitting his attendance in Wolf Point. The following year, the School Board denied Brandon’s tuition transfer request.\nMr. Forsness appealed the Board’s decision to the Valley County Superintendent of Schools. Following hearing, the decision was affirmed by presiding hearings officer, Dolores Hughes, the Phillips County Superintendent of Schools. On appeal to the State Superintendent of Public Instruction, the decision was reversed. The Frazer School Board appealed the order of the State Superintendent to the District Court. The District Court reversed and reinstated the decision of the Frazer School Board denying a tuition transfer. Mr. Forsness appeals the District Court order and raises the following issues:\n1. Whether the District Court complied with Sections 2-4-623 and 704, MCA?\n2. Whether the decision of the County Superintendent violated the Montana Administrative Procedures Act and is contrary to law?\nThe case before us is a companion case to Frazer School District No. 2 v. Flynn (Mont. 1987) [_Mont__,] 732 P.2d 409, 44 St.Rep. 248. The issues are identical, and our holding in Flynn, supra, is dispositive of this appeal.\nIn Flynn, supra we found that pursuant to Rule 10.6.125, Administrative Rules of Montana, the State Superintendent may not substi*246tute his judgment for that of the County Superintendent as to the weight of the evidence on questions of fact. In the present case, we find the State Superintendent violated this provision and the District Court was correct in reinstating the decision of the County Superintendent.\nThe Frazer School Board has broad discretionary authority under Section 20-5-302, MCA, to permit a tuition transfer. The Board denied Brandon Forsness’ application. The County Superintendent considered all the evidence and found the Board properly exercised its discretion under Section 20-5-302, MCA, in denying the Forsness application. The State Superintendent reversed, finding the Board’s reasons for denying the application to be a change in the composition of the Frazer School Board and a change in the bus route. As in Flynn, supra, we find the State Superintendent exceeded his authority by substituting his opinion for that of the Frazer School Board and the County Superintendent.\nThe District Court is affirmed.\nMR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.\n", "ocr": false, "opinion_id": 9508408 }, { "author_str": "Sheehy", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMR. JUSTICE SHEEHY,\ndissenting:\nAgain I dissent, as I did in the companion case, Frazer School District No. 2 v. Flynn (Mont. 1987), [225 Mont. 299,] 732 P.2d 409, 44 St.Rep. 248, and for the same reasons. Both of these decisions severely limit the statutory discretionary power lodged in the Superintendent of Public Instruction on matters of controversy appealed to the Superintendent under Section 20-3-107, MCA.\nMR. JUSTICE HUNT concurs in the foregoing dissent.\n", "ocr": false, "opinion_id": 9508409 } ]
Montana Supreme Court
Montana Supreme Court
S
Montana, MT
1,061,146
null
2013-06-11
false
jeff-freddie-gross-v-janice-honaker-gross
null
Jeff Freddie Gross v. Janice Honaker Gross
null
null
null
null
null
null
null
null
null
null
null
null
0
Unpublished
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.courts.state.va.us/opinions/opncavwp/2214123.pdf", "author_id": null, "opinion_text": " COURT OF APPEALS OF VIRGINIA\n\n\n Present: Judges Humphreys, McCullough and Senior Judge Bumgardner\nUNPUBLISHED\n\n\n\n JEFF FREDDIE GROSS\n MEMORANDUM OPINION *\n v. Record No. 2214-12-3 PER CURIAM\n JUNE 11, 2013\n JANICE HONAKER GROSS\n\n\n FROM THE CIRCUIT COURT OF RUSSELL COUNTY\n Michael L. Moore, Judge\n\n (C. Eugene Compton, on brief), for appellant.\n\n (A. Benton Chafin, Jr., on brief), for appellee.\n\n\n Jeff Freddie Gross (husband) appeals an order denying his motion to modify or terminate\n\n spousal support. Husband argues that the trial court erred by (1) “holding that spousal support was\n\n not modifiable, when the parties agreed in their handwritten agreement that spousal support would\n\n be modifiable”; and (2) “refusing to modify spousal support, when the effect of that refusal was to\n\n give the wife [Janice Honaker Gross] a claim to husband’s Social Security benefits, even though she\n\n had waived any such claim under section 7 of the parties’ typewritten agreement.” Upon reviewing\n\n the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly,\n\n we summarily affirm the decision of the trial court. See Rule 5A:27.\n\n BACKGROUND\n\n Husband and wife married on September 21, 1974 and separated on January 7, 2004.\n\n During their separation, the parties signed an undated, handwritten agreement, which addressed\n\n property and spousal support (the handwritten agreement). In part, the handwritten agreement\n\n\n *\n Pursuant to Code § 17.1-413, this opinion is not designated for publication.\n\fstated that husband was “entitled to have court recalculate spousal if his income changes\n\nsignificantly involuntarily.”\n\n Also during the separation, husband proposed several typed separation and property\n\nsettlement agreements. Wife rejected two of the proposed agreements; however, she accepted a\n\nthird agreement dated September 29, 2008 (the September 29, 2008 agreement). The September\n\n29, 2008 agreement did not refer to the handwritten agreement, but it included the following\n\nparagraph regarding spousal support:\n\n Pursuant to the Fairfax Guidelines, the Husband shall pay directly\n to the Wife the amount of $573.00 per month spousal support,\n commencing August 1, 2008, and continuing on the 1st day of\n each month thereafter until such time as either party dies or the\n Wife marries or cohabits with another person in a relationship\n analogous to marriage for one year or more, whichever event shall\n first occur.\n\n On November 13, 2008, the trial court entered a final decree of divorce, which\n\nincorporated the September 29, 2008 agreement. The final decree reiterated husband’s spousal\n\nsupport obligation by including the same spousal support paragraph as stated in the September\n\n29, 2008 agreement.\n\n On November 22, 2010, husband filed a motion to amend his support obligations in the\n\nRussell County Juvenile and Domestic Relations District Court (the JDR court). He asked that\n\nhis child support obligation be recalculated and his spousal support obligation be terminated\n\nbecause he was “only drawing unemployment.” On February 16, 2011, wife filed a motion to\n\namend in the JDR court and asked that her child support and spousal support be increased. On\n\nMarch 3, 2011, the JDR court entered an order, which in pertinent part, denied and dismissed\n\nhusband’s motion to terminate spousal support. It also set a temporary child support award and\n\ncontinued the matter for review. On July 14, 2011, the JDR court reviewed child support and\n\n\n\n\n -2-\n\fdenied husband’s motion to reconsider spousal support. On the same day, husband appealed to\n\nthe circuit court. 1\n\n On March 20, 2012, the parties presented evidence and argument regarding spousal\n\nsupport. On May 3, 2012, the trial court issued its letter opinion and denied the motion to\n\nmodify or terminate spousal support. The trial court held that the September 29, 2008 agreement\n\nwas the final agreement between the parties and its language was “clear and unambiguous that\n\nsupport could not be modified.” The trial court noted that the September 29, 2008 agreement\n\nwas incorporated into the final decree, and neither party appealed it. Consequently, the trial\n\ncourt held that it had “no authority” to modify the terms of the September 29, 2008 agreement or\n\nthe final decree. This appeal followed.\n\n ANALYSIS\n\n Assignment of error 1\n\n Husband argues that the trial court erred by holding that his spousal support obligation\n\nwas not modifiable. Husband contends the trial court erroneously ignored the parties’\n\nhandwritten agreement, which expressly provided for modifiable spousal support.\n\n “Antenuptial agreements, like marital property settlements, are contracts subject to the\n\nrules of construction applicable to contracts generally, including the application of the plain\n\nmeaning of unambiguous contractual terms.” Pysell v. Keck, 263 Va. 457, 460, 559 S.E.2d 677,\n\n678 (2002) (citing Southerland v. Estate of Southerland, 249 Va. 584, 588, 457 S.E.2d 375, 378\n\n(1995)).\n\n On appeal, the Court reviews a trial court’s interpretation of a\n contract de novo. Eure v. Norfolk Shipbuilding & Drydock Corp.,\n\n 1\n On January 24, 2012, husband filed a motion to reinstate the matter on the circuit\ncourt’s docket. Husband asked the trial court to incorporate the handwritten agreement into the\nfinal decree and terminate his spousal support. The trial court granted the motion, which,\naccording to the parties, is still pending in the trial court. We did not consider the motion to\nreinstate in this appeal.\n -3-\n\f 263 Va. 624, 631, 561 S.E.2d 663, 667 (2002) (citing Wilson v.\n Holyfield, 227 Va. 184, 313 S.E.2d 396 (1984)) (“we have an\n equal opportunity to consider the words of the contract within the\n four corners of the instrument itself”). The question whether\n contract language is ambiguous is one of law, not fact. Tuomala v.\n Regent Univ., 252 Va. 368, 374, 477 S.E.2d 501, 505 (1996).\n Thus, the trial court’s conclusion regarding ambiguity is accorded\n no deference on appeal. See id.\n\nPlunkett v. Plunkett, 271 Va. 162, 166-67, 624 S.E.2d 39, 41 (2006).\n\n Here, the parties entered into a handwritten agreement, which specifically allowed\n\nmodification of spousal support if husband’s “income changes significantly involuntarily.”\n\nSubsequently, husband proposed several separation and property settlement agreements. One of\n\nthe drafts tracked the language from the handwritten agreement and stated that husband’s spousal\n\nsupport obligation could be modifiable “if his income changes significantly involuntarily.”\n\nNotably, this clause was dropped from the subsequent proposed agreements.\n\n The September 29, 2008 agreement, which wife accepted, did not provide for the\n\nmodification of spousal support, except until “such time as either party dies or the Wife marries\n\nor cohabits with another person in a relationship analogous to marriage for one year or more,\n\nwhichever event shall first occur.” The September 29, 2008 agreement did not incorporate, or\n\neven mention, the handwritten agreement. The final decree incorporated the September 29, 2008\n\nagreement and did not mention or incorporate the handwritten agreement. In fact, the final\n\ndecree repeated the spousal support language from the September 29, 2008 agreement. Neither\n\nthe September 29, 2008 agreement nor the final decree stated that spousal support could be\n\nmodified based on a change in husband’s income.\n\n In suits for divorce, . . . if a stipulation or contract signed by the\n party to whom such relief might otherwise be awarded is filed\n before entry of a final decree, no decree or order directing the\n payment of support and maintenance for the spouse, . . . shall be\n entered except in accordance with that stipulation or contract. . . .\n\nCode § 20-109(C).\n\n -4-\n\f Considering the language in the September 29, 2008 agreement, the trial court did not err\n\nin holding that husband’s spousal support obligation was not modifiable due to a change in his\n\nincome.\n\n Husband argues that this case is similar to the facts in Driscoll v. Hunter, 59 Va. App. 22,\n\n716 S.E.2d 477 (2011), because the parties entered into several agreements. The Court held that\n\n“[w]hen a contract consists of multiple instruments, we interpret them together to determine the\n\nparties’ intent.” Id. at 30, 716 S.E.2d at 480 (citation omitted). However, the parties in Driscoll\n\nincluded language in their subsequent agreements to incorporate the prior agreements. No such\n\nlanguage exists in the September 29, 2008 agreement to incorporate the handwritten agreement.\n\n The recitations in the September 29, 2008 agreement state that “it is the mutual desire of\n\nthe parties to settle all rights, interests, and obligations between them, and to obtain a full,\n\ncomplete and final Separation and Property Settlement, including for the present and all future\n\ntime, the division of their assets and liabilities and the support of both parties.” The recitations\n\nfurther state that this agreement is “in full settlement of any and all interest of each other in the\n\nproperty, estate and interests of the other.” In paragraph 10 of the September 29, 2008\n\nagreement, the parties agreed to incorporate “this Agreement” into a final decree of divorce “in\n\nfull and complete settlement of all right, title and interest which each may have in the property or\n\nestate of the other.”\n\n “‘When a contract is clear and unambiguous, it is the court’s duty to interpret the\n\ncontract, as written.’” Stacy v. Stacy, 53 Va. App. 38, 44, 669 S.E.2d 348, 351 (2008) (en banc)\n\n(quoting Palmer & Palmer Co., LLC v. Waterfront Marine Constr., Inc., 276 Va. 285, 289, 662\n\nS.E.2d 77, 80 (2008)).\n\n The language in the September 29, 2008 agreement is clear and unambiguous.\n\nHusband’s spousal support obligation can be modified when “either party dies or the Wife\n\n -5-\n\fmarries or cohabits with another person in a relationship analogous to marriage for one year or\n\nmore, whichever event shall first occur.” It does not allow for modification based on a change of\n\nhis income. The handwritten agreement was not incorporated into the September 29, 2008\n\nagreement or the final decree. The trial court did not err in holding that it could not modify\n\nhusband’s spousal support obligation pursuant to the September 29, 2008 agreement.\n\n Assignment of error 2\n\n Husband asserts that by ordering him to pay spousal support to wife, the trial court\n\neffectually awarded her a portion of his retirement, in contravention of the September 29, 2008\n\nagreement. Husband explains that his Social Security retirement and disability benefits are his\n\nonly income from which he can pay spousal support. Husband argues that wife waived her right\n\nto his retirement according to paragraph 7 of the September 29, 2008 agreement, which states\n\nthat “[e]ach party forever waives any claim to the other party’s retirement benefits, IRA’s and/or\n\npensions, whether past, present or future.” Therefore, he contends the trial court should have\n\nmodified his spousal support, so wife was not receiving a portion of his Social Security\n\nretirement and disability benefits.\n\n This issue regarding spousal support and retirement division was addressed in Moreno v.\n\nMoreno, 24 Va. App. 190, 480 S.E.2d 792 (1997), where husband argued that he should not have\n\nto use his retirement income to pay his spousal support obligation. The Court examined the\n\nrelationship between Code §§ 20-107.1 and 20-107.3:\n\n The one-time equitable distribution of property completed by Code\n § 20-107.3 is based on the accrued rights of the parties in the\n distributed property. This is a separate consideration from that\n necessary to measure the current financial positions of the parties\n in determining spousal support under Code § 20-107.1. Different\n statutory considerations are mandated for each.\n\nMoreno, 24 Va. App. at 198, 480 S.E.2d at 796.\n\n\n\n -6-\n\f Furthermore, the Court held, “Although Code § 20-107.3(G) limits the award a spouse\n\ncan receive pursuant to the equitable distribution of marital property, no language precludes that\n\nproperty from being considered at a later time as income for purposes of calculation of spousal\n\nsupport.” Id. at 198-99, 480 S.E.2d at 796. The Court ultimately concluded that “the income\n\nreceived by husband from his share of the distribution of his pension is a fungible asset that may\n\nbe considered as a resource when determining the amount of his spousal support obligation.” Id.\n\nat 204, 480 S.E.2d at 799.\n\n The trial court did not err in refusing to terminate husband’s spousal support obligation\n\nbecause of wife’s waiver to his retirement. Her waiver to retirement was in reference to\n\nequitable distribution and Code § 20-107.3, not spousal support and Code § 20-107.1.\n\n CONCLUSION\n\n For the foregoing reasons, the trial court’s ruling is summarily affirmed. Rule 5A:27.\n\n Affirmed.\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 1061146 } ]
Court of Appeals of Virginia
Court of Appeals of Virginia
SA
Virginia, VA
1,239,363
Lee
1972-10-24
false
rowse-v-district-court-in-for-county-of-alamosa
Rowse
Rowse v. DISTRICT COURT IN & FOR COUNTY OF ALAMOSA
Christopher Rowse v. District Court in and for the County of Alamosa, State of Colorado, Honorable Richard E. Conour, District Judge, Robert W. Ogburn, District Attorney for the Twelfth Judicial District, State of Colorado
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, John C. McClure, Deputy, for petitioner., Robert W. Ogbum, District Attorney, Twelfth Judicial District, for respondents.
null
null
null
null
null
null
null
null
null
null
10
Published
null
<docketnumber id="b60-4"> No. 25661 </docketnumber><br><parties id="b60-5"> Christopher Rowse v. District Court in and for the County of Alamosa, State of Colorado, Honorable Richard E. Conour, District Judge, Robert W. Ogburn, District Attorney for the Twelfth Judicial District, State of Colorado </parties><br><citation id="b60-6"> (502 P.2d 422) </citation><br><decisiondate id="b60-7"> Decided October 24, 1972. </decisiondate><br><attorneys id="b61-10"> <span citation-index="1" class="star-pagination" label="45"> *45 </span> Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, John C. McClure, Deputy, for petitioner. </attorneys><br><attorneys id="b61-11"> Robert W. Ogbum, District Attorney, Twelfth Judicial District, for respondents. </attorneys><br><court id="b61-12"> <em> En Banc. </em> </court>
[ "502 P.2d 422", "180 Colo. 44" ]
[ { "author_str": "Lee", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 3919, "opinion_text": "\n502 P.2d 422 (1972)\nChristopher ROWSE, Petitioner,\nv.\nDISTRICT COURT IN AND FOR THE COUNTY OF ALAMOSA, State of Colorado et al., Respondents.\nNo. 25661.\nSupreme Court of Colorado, En Banc.\nOctober 24, 1972.\n*423 Rollie R. Rogers, Colo. State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Denver, John C. McClure, Deputy State Public Defender, Alamosa, for petitioner.\nRobert W. Ogburn, Dist. Atty., Twelfth Judicial Dist., Alamosa, for respondents.\nLEE, Justice.\nThis is an original proceeding in which we issued our rule to show cause why criminal action No. 1416 in the district court of Alamosa County should not be dismissed for failure to grant petitioner a speedy trial. Respondents have answered and the matter is now at issue.\nOn June 22, 1971, petitioner, Christopher Rowse, was charged by indictment in criminal action No. 1396 in the district court of Alamosa County, with two drug offenses. Count 1 charged petitioner with the unlawful possession of narcotics on October 22, 1971. Count 2 charged him with the unlawful sale of narcotics on October 22, 1970.\nBy reason of the obvious error in the date of the alleged occurrence of the offense charged in count 1 of the indictment, the grand jury re-indicted petitioner by a second two-count indictment filed as criminal action No. 1416. Count 1 charged petitioner with unlawful possession of narcotics on October 22, 1970. Count 2 was identical with count 2 of the first indictment in action No. 1396.\nPetitioner had been taken into custody pursuant to action No. 1396 and was released on $2,000 bond. He is presently at liberty pending determination of the charges against him. A motion to dismiss action No. 1396 was filed on October 1, 1971, which lay dormant, apparently not having been called up for hearing. However, the court dismissed action No. 1396 on July 20, 1972, on its own motion under the circumstances hereinafter set forth.\nPetitioner was without counsel in action No. 1416 until May 4, 1972, when the court, at the request of petitioner, appointed the public defender to represent him. On July 12, 1972, a motion to dismiss action No. 1416 was filed on behalf of petitioner, asserting as grounds for dismissal that petitioner had been denied a speedy trial as requested by Crim.P. 48(b) and by Article 2, Section 16, of the Colorado Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. In substance, the motion to dismiss alleged that petitioner was charged in action No. 1396 on June 22, 1971, and was subject to the jurisdiction of the court from that time; that action No. 1416, filed on October 28, 1971, charged him with exactly the same offenses of which he was accused in action No. 1396; that thirteen months had elapsed from the time petitioner became subject to the jurisdiction of the court; and as a result, the delay not having been caused by petitioner, he had been denied a speedy trial.\nAfter hearing on the motion to dismiss, held on July 20, 1972, the trial court ordered that action No. 1396, which was then still pending, be dismissed for the reason that petitioner had not been brought to trial within one year. However, as to action No. 1416, the court denied the motion to dismiss, as one year had not elapsed from the filing of the action on October 28, 1971.\nPetitioner's argument here is essentially that made in the trial court—that is, that both indictments accused petitioner of the same offenses and that he was not brought to trial within one year and was thereby denied his constitutional right to a speedy trial.\nThe district attorney here confesses error and advises us that the trial court was in error in denying dismissal of count 2 of action No. 1416, inasmuch as it was in fact identical with count 2 of action No. 1396. We agree that the court erred in denying *424 dismissal of count 2, as the petitioner had been charged with that offense and was subject to the jurisdiction of the court for thirteen months. Jaramillo v. District Court, 174 Colo. 561, 484 P.2d 1219; Crim.P. 48(b). The rule to show cause should be made absolute as to count 2 of action No. 1416.\nWe disagree, however, with petitioner's contention that count 1 of action No. 1416 should also have been dismissed by the court. The attempt to charge petitioner on June 22, 1971, in action No. 1396 with an offense alleged to have occurred on October 28, 1971, a time subsequent to the filing of the indictment, was a nullity. A crime cannot be charged in futuro and an indictment or information which purports to do so in legal effect charges nothing and is without efficacy. In such a situation, the charging of an impossible date as the time of the occurrence of the alleged offense is regarded as a matter of substance and not of form. Fowler v. Ross, 90 U.S.App.D.C. 305, 196 F.2d 25 (1952); People v. Weinstein, 255 Ill. 530, 99 N.E. 589; Pagotis v. State, 214 Ind. 697, 17 N.E.2d 830; People v. Van Every, 222 N.Y. 74, 118 N.E. 244; McKay v. State, 91 Neb. 281, 135 N.W. 1024. It follows that, since the indictment in action No. 1396 as to count 1 thereof was ineffective, petitioner was not legally charged or subject to the jurisdiction of the court as to the transaction intended to have been charged—the unlawful possession of narcotics on October 22, 1970. He did not become legally charged or subject to the jurisdiction of the court as to that transaction until he was re-indicted and charged in action No. 1416. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468.\nPetitioner further argues that, even so, there was an unnecessary delay of nine months from commencement of action No. 1416 until the filing of the motion to dismiss, during which period of time the action should have been tried, and that he was thereby denied his right to a speedy trial. As stated in Gonzales v. People, 156 Colo. 252, 398 P.2d 236, cert. denied, 381 U.S. 945, 85 S.Ct. 1788, 14 L.Ed.2d 709, recently reaffirmed in Jaramillo v. District Court, supra, the constitutional right to a speedy trial means a trial consistent with the court's business. See also, Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L. Ed.2d 101. The burden is upon a defendant who asserts denial of a speedy trial to show facts establishing that, consistent with the court's trial docket conditions, he could have been afforded a trial. Here, petitioner asserts he was arbitrarily denied the right to make such a showing in the trial court, and that had he been allowed the opportunity he could have made such a showing. The record does not support this assertion. An examination of the record fails to reveal any offer of proof relative to lack of docket congestion during the period in question. Petitioner has failed to meet his burden in this regard and we view this argument as without merit.\nThe rule is made absolute as to count 2 of the indictment. As to count 1 of the indictment, the rule is discharged.\nGROVES, J., not participating.\n", "ocr": false, "opinion_id": 1239363 } ]
Supreme Court of Colorado
Supreme Court of Colorado
S
Colorado, CO
2,112,418
null
2008-09-01
false
farmers-auto-ins-assn-v-wroblewski
Wroblewski
FARMERS AUTO. INS. ASS'N v. Wroblewski
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "897 N.E.2d 250", "229 Ill. 2d 620" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n897 N.E.2d 250 (2008)\n229 Ill.2d 620\nFARMERS AUTO. INS. ASS'N\nv.\nWROBLEWSKI.\nNo. 106586.\nSupreme Court of Illinois.\nSeptember Term, 2008.\nDisposition of petition for leave to appeal.[*] Denied.\nNOTES\n[*] For Cumulative Leave to Appeal Tables see preliminary pages of advance sheets and Annual Illinois Cumulative Leave to Appeal Table.\n\n", "ocr": false, "opinion_id": 2112418 } ]
Illinois Supreme Court
Illinois Supreme Court
S
Illinois, IL
1,258,029
Ransom, Scarborough, Sosa
1989-06-22
false
yates-petroleum-corp-v-kennedy
null
Yates Petroleum Corp. v. Kennedy
YATES PETROLEUM CORPORATION, a New Mexico Corporation, Plaintiff-Appellant, v. W.G. KENNEDY and Betty L. Kennedy, His Wife, Defendants-Appellees
Dickerson, Fisk & Vandiver, Rebecca L. Reese, Artesia, for plaintiff-appellant., McCormick, Forbes, Caraway & Tabor, John M. Caraway, Michael E. Dargel, Carlsbad, for defendants-appellees.
null
null
null
null
null
null
null
null
null
null
7
Published
null
<citation id="b602-3" pgmap="602"> 775 P.2d 1281 </citation><br><parties id="b602-4" pgmap="602"> YATES PETROLEUM CORPORATION, a New Mexico corporation, Plaintiff-Appellant, v. W.G. KENNEDY and Betty L. Kennedy, his wife, Defendants-Appellees. </parties><br><docketnumber id="b602-7" pgmap="602"> No. 17863. </docketnumber><br><court id="b602-8" pgmap="602"> Supreme Court of New Mexico. </court><br><decisiondate id="b602-9" pgmap="602"> June 22, 1989. </decisiondate><br><attorneys id="b602-27" pgmap="602"> Dickerson, Fisk &amp; Vandiver, Rebecca L. Reese, Artesia, for plaintiff-appellant. </attorneys><br><attorneys id="b603-3" pgmap="603"> McCormick, Forbes, Caraway &amp; Tabor, John M. Caraway, Michael E. Dargel, Carlsbad, for defendants-appellees. </attorneys>
[ "775 P.2d 1281", "108 N.M. 564" ]
[ { "author_str": "Ransom", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 5167, "opinion_text": "\n775 P.2d 1281 (1989)\n108 N.M. 564\nYATES PETROLEUM CORPORATION, a New Mexico corporation, Plaintiff-Appellant,\nv.\nW.G. KENNEDY and Betty L. Kennedy, his wife, Defendants-Appellees.\nNo. 17863.\nSupreme Court of New Mexico.\nJune 22, 1989.\nDickerson, Fisk &amp; Vandiver, Rebecca L. Reese, Artesia, for plaintiff-appellant.\n*1282 McCormick, Forbes, Caraway &amp; Tabor, John M. Caraway, Michael E. Dargel, Carlsbad, for defendants-appellees.\n\nOPINION\nRANSOM, Justice.\nYates Petroleum Corporation (Yates) appeals from the judgment of damages awarded W.G. and Betty L. Kennedy (Kennedy) following a bench trial in a condemnation proceeding. This case is receiving appellate review for the third time. See Kennedy v. Yates Petroleum Corp., 104 N.M. 596, 725 P.2d 572 (1986); Kennedy v. Yates Petroleum Corp., 101 N.M. 268, 681 P.2d 53 (1984). At issue here is whether the trial court erred in the method employed to calculate just compensation, and, if not, whether the judgment awarded is supported by substantial evidence.\nOn February 16, 1983, Yates filed a proceeding to condemn an easement for a thirty-foot right-of-way for the continuing operation and maintenance of a natural gas pipeline that traverses Kennedy's ranchland for a distance of 9,240 feet. The easement burdens approximately 6.38 acres. The pipeline had been in existence since 1972 and preceded Kennedy's ownership of the ranch by three years. This action is a consequence of Yates' failure to record an easement acquired from the prior owner.\nThree commissioners were appointed to assess just compensation. Yates objected to the commissioners' report and appraisal; but, following a hearing, the trial court confirmed the damage award. Pursuant to NMSA 1978, Section 42A-1-21 (Repl.Pamp. 1981), Yates demanded de novo review of the compensation award. It waived trial by jury. The case was tried to the same judge who had confirmed the commissioners' report and judgment.\nAt trial, Yates presented its evidence first and called an expert real estate appraiser as one of its witnesses. The expert testified that the highest and best use of this property was for ranching, the fair market value of the ranch before the taking of the easement was the same as after the taking, and the fair market value of property comparable to Kennedy's was $55 to $165 per acre.\nIn presenting his case-in-chief, Kennedy took the stand and recounted problems he had experienced with dust created by traffic along a tract road that ran parallel to the pipeline within the easement right-of-way. Yates' employees would travel this road at least once a week to check the condition of the pipeline. Kennedy testified that his livestock would not graze on grass that was covered by dust raised by this traffic. While he made no claim for special damages to which he might be entitled (as not duplicative of the statutory measure of damages for the property actually taken, see SCRA 1986, 13-705), Kennedy opined that, based upon unspecified past and prospective damage to his cattle operation, the difference in the value of his ranch before the taking compared to after the taking was $40,000. Kennedy testified:\nQ. [D]o you have an opinion as to the value per acre of your deeded lands in the area where the taking occurred?\nA. Well, not really. I didn't set a value on it because I wasn't ready to sell any of it.\nQ. Let me ask you this, Mr. Kennedy. Do you have an opinion as to the difference in value of your ranch before the taking versus after the taking as of February 1983 in damages?\nA. Well, considering all the traffic and the dust, and that kind of stuff that I've put up with on that pipeline * * * I would say more in the neighborhood of $40,000.\nQ. Insofar as in diminution in value occasioned by the taking?\nA. Yes. I've lost considerable income from the dust that has been put on the grass, and the cattle will not graze it until it's washed off; they just go to the other areas. And it's been a pretty damaging factor.\n\n. . . .\n\n*1283 A. [I]t's hard to pick a figure and say, \"Well, this is a fair figure for the damage that we're going to do so many years down the road, or what we've already did in the past.\" * * * *\nTHE COURT: What factors did you use in coming up with the $40,000?\nTHE WITNESS: Well, —\nTHE COURT: What did you take into account?\nTHE WITNESS: The years of use that they have used this pipeline and run up and down it consistently, and the fact that no other pipeline that I've got or anybody else has got in the area, that I know of, has got pits on it that are a possibility for livestock getting in it — and I've had Yates dig other pits that I've had cattle get in and get killed, and all this kind of stuff. And it's kind of — I don't know, you've just got to pick something out of the blue sky that you feel like is a just figure. And so that's where I come up with it; I just —\n. . . .\nTHE WITNESS: We've had, you know, we've had considerable damage, and we'll continue to have it as long as they use it. And if we can stop that usage, well, my guesstimate would be lower.\n\n(Emphasis added.)\nMr. Fred Collins, one of the commissioners called as a witness by Kennedy, corroborated that traffic on the easement tract road creates dust that settles on the grass preventing the livestock from grazing. He gave his opinion that, for grazing purposes, the land injuriously affected by the dust would cover 300 feet in addition to the easement, and that the dust can be blown west a quarter of a mile (1,320 feet). On cross-examination, however, Collins conceded that he had no comprehensive knowledge of the traffic on the tract road and could only testify that \"there's some dust.\"\nIn the court's second amended findings of fact and conclusions of law, the trial judge made the following findings:\n11. As a result of the operation, and maintenance of the pipeline, dust is cast into the air in an area approximately 1/4 mile wide for the length of the pipeline. This dust interferes with, and consequently greatly diminishes the value of the property, for ranching purposes, because cattle won't eat vegetation with a heavy layer of dust. There has been an injurious effect and \"taking\" of a strip of land owned by the Plaintiff 1/4 mile wide.\n12. The fair market value of the land \"taken\" for ranching purposes is $165.00 per acre.\n13. As mandated by 42A-1-26 NMSA 1978, Kennedy has suffered total damages resulting from the taking by Yates equal to the difference between the fair market value of the entire property immediately before the taking and the fair market value of the property remaining immediately after the taking in the sum of $46,200.00.\nBurden of proof. First, Yates complains that the trial court improperly allocated the burdens of proof to establish damages in this case. Following SCRA 1986, 13-701, the court required both Kennedy and Yates to prove their respective contentions by the greater weight of the evidence. Yates maintains that Kennedy had the burden of proving that substantial damages resulted from Yates' taking of the easement. In ruling that Yates should prove its contentions by a preponderance, Yates argues that the trial court improperly required it to prove that the condemnation caused only nominal damages.\nIn his special concurrence in Transwestern Pipe Line Co. v. Yandell, 69 N.M. 448, 367 P.2d 938 (1961), Justice Noble stated that the party appealing the commission's judgment has the burden to prove damages or the lack of it. Id. at 462, 367 P.2d at 947 (Noble, J., specially concurring). The proposition was stated without any citation to authority and is at odds with the Yandell majority's holding that, once confirmation of the commissioner's report is appealed for trial de novo, the report as *1284 well as the act of confirmation become functus officio. Id. at 453, 367 P.2d at 941. Although the trial de novo is not the beginning of a new action, it is a new and distinct adjudication that requires a fresh presentation of evidence.\nIn this posture, it is the landowner who has the burden to substantiate by a preponderance his claim of damages. See 5 J. Sackman, Nichols on Eminent Domain § 18.5 (3d ed. 1985). Regardless of being denominated the defendant, it is the landowner who opens and closes the evidence, as well as the arguments. See State ex rel. State Highway Comm'n v. Sherman, 82 N.M. 316, 318, 481 P.2d 104, 106 (1971). After the landowner presents his evidence of damages, the condemnor has three options: (1) under appropriate circumstances, it can move for a directed verdict; (2) it can go forward to discredit the landowner's evidence; and (3) it can offer to prove affirmatively by a preponderance an alternative amount of damages. In the latter instance, the jury would be instructed on the statement of the case pursuant to SCRA 1986, 13-701. Because both Kennedy and Yates structured their case on alternative theories of damages, the trial court here did not err in assigning the burdens of proof as it did. However, we note that Kennedy should have been first to present evidence.\nMeasure of damages. Yates argues that the trial court failed to apply the proper method for determining just compensation under the circumstances of this case. Under the Eminent Domain Code (NMSA 1978, Sections 42A-1-1 to 42A-1-34 (Repl. Pamp. 1981 &amp; Cum.Supp. 1988)), damages for a partial taking are measured in accordance with Section 42A-1-26. Where there is a partial taking of property,\nthe measure of compensation and damages resulting from the taking shall be the difference between the fair market value of the entire property immediately before the taking and the fair market value of the property remaining immediately after the taking. In determining such difference, all elements which would enhance or diminish the fair market value before and after the taking shall be considered even though some of the damages sustained by the remaining property, in themselves, might otherwise be deemed noncompensable. Further, in determining such values or differences therein, elements which would enhance or benefit any property not taken shall only be considered for the purpose of offsetting any damages or diminution of value to the property not taken.\n§ 42A-1-26. This method of calculating damages is called the \"before and after\" rule. The rule is a recognition that, in addition to compensation for property actually taken, the landowner should be compensated for any loss of value suffered by the remaining property because of the condemnation of a particular portion. See State ex rel. State Highway Dep't of N.M. v. Strosnider, 106 N.M. 608, 611, 747 P.2d 254, 257 (Ct.App. 1987) (rule's purpose is to compensate for any diminution in the fair market value of the remaining property as a result of the taking); City of Albuquerque v. Chapman, 76 N.M. 162, 413 P.2d 204 (1966) (landowner entitled to recover the amount his property has depreciated by a taking of a portion).\nIn Chapman, the Court also stated that the rule allows the finding of no damages if there was no depreciation in the fair market value of the property as a result of a taking of a portion. 76 N.M. at 166, 413 P.2d at 206; Board of Comm'rs v. Gardner, 57 N.M. 478, 260 P.2d 682 (1953) (holding that benefits accruing to remaining property shall be considered in calculating damages for the value of the part taken as well as any damages to the part remaining). In 1973, the legislature supplemented the \"before and after\" rule (N.M. Laws 1968, Ch. 30, § 1) to read as follows: \"Further, in determining such values or differences therein, elements which would enhance or benefit any property not taken shall only be considered for the purpose of offsetting any damages or diminution of value to the property not taken.\" N.M. *1285 Laws 1973, Ch. 384, § 1 (codified at NMSA 1978, § 42-1-10). In 1981, the legislature repealed Section 42-1-10, see N.M. Laws 1981, Ch. 125, § 62, but the successor statute, Section 42A-1-26, was a reenactment of the rule and retained the supplemental language.\nWe believe the supplemental language nullifies the holdings in Chapman and Gardner that no damages exist when the fair market value of the remaining property after the taking is equal to or exceeds the fair market value of the entire property before the taking. If the remaining land is enhanced in value as a result of the project requiring the condemnation, that enhancement can only be used to offset damages to the value of the remaining property. § 42A-1-26. Recognized alternatives to the \"before and after\" rule compute damages by initially determining the value of the land taken and then adding any net damage that results to the remainder after a setoff of benefits. 4A J. Sackman, Nichols on Eminent Domain § 14.05 (3d ed. 1985). By modifying the \"before and after\" rule to allow accrued benefits to be set off only against damages to the property remaining, the legislature has adopted a \"before and after\" alternative for situations when the remainder is worth as much or more after the taking than the entirety was worth immediately before the taking. When there is not substantial evidence to demonstrate that the property has been diminished in fair market value by reason of a partial taking, the \"before and after\" rule loses its relevancy and the proper alternative measure of compensation would be the fair market value of the property actually taken.\nInapplicability of \"unity rule.\" Yates argues that the trial court erred in calculating damages without reference to the value of Kennedy's entire property, a ranch encompassing 14,749 acres. Approximately 4,000 acres are deeded lands owned in fee as to the surface. The remaining land is leased by Kennedy from the State of New Mexico and the federal Bureau of Land Management, or is deeded to other private individuals. The fee lands, state and federal leases and permits, and lands deeded to other private individuals are scattered throughout the ranch in a \"checkerboard\" fashion. The pipeline easement touches upon the western boundary of three non-contiguous sections of Kennedy's deeded property. At issue is what constitutes Kennedy's entire property for purposes of measuring the diminution, if any, in the fair market value of his property due to the imposition of the pipeline easement.\nYates contends that under the unity rule the entire 14,749-acre ranch should be regarded as a single tract. The unity rule is applied to ascertain whether two or more parcels of property constitute a single larger tract for the purpose of calculating the fair market value of the property taken or the severance damages to the remaining land that is not subject to condemnation. State ex rel. Highway Comm'n v. Gray, 81 N.M. 399, 400-01, 467 P.2d 725, 726-27 (1970). To apply the unity rule, generally the following three factors should be present: physical contiguity, unity of use, and unity of ownership. Id. The combined presence of all three factors, however, is not a prerequisite to the rule's application. Strosnider, 106 N.M. at 611, 747 P.2d at 257.\nYates maintains that the entire property is used as one unified ranching operation, notwithstanding the diverse ownership interests represented within the ranch's boundaries. To support its contention, Yates points to the fact that Kennedy has a fence encircling all 14,749 acres and that the ranch is run and accounted for under a single set of books. Because Kennedy uses all the acreage to raise his livestock, Yates argues that this unity of use should be determinative in applying the unity rule and, for purposes of measuring damages due to a partial taking, the entire property constitutes 14,749 acres. Because Kennedy presented no evidence establishing the fair market value of his entire ranch before the easement and the fair market value *1286 after the easement's placement, Yates concludes that the trial court erred as a matter of law in calculating Kennedy's damages.\nWe are not persuaded by Yates' argument or its authority. See Texas Elec. Serv. Co. v. Linebery, 327 S.W.2d 657, 662 (Tex.Civ.App. 1959) (trial court did not err in assuming that 22,401 acres of the condemnee's land did constitute a single tract). The purpose of the unity rule is to ensure that the landowner is justly compensated by awarding him any damages that result from condemning a portion of his property that is integral to the value of the highest and best use of the remainder. See 4A J. Sackman, Nichols on Eminent Domain § 14.26 (3d ed. 1985). The entire property for purposes of before and after valuation can only be that property the value of which is demonstrated by substantial evidence to have been affected by the partial taking. It is a simple question of relevance and materiality. Because the only evidence to suggest the pipeline easement affected the value of Kennedy's ranch was limited to that acreage physically impacted by the easement, the entire property for purposes of ascertaining damages in this case would include only such land as was physically impacted.\nSubstantial evidence. In reviewing the record, it is apparent that the judgment cannot stand because there is no substantial evidence to support the trial court's findings as to diminution of value to land physically impacted beyond the 6.38 acres burdened by this easement, i.e., the portion actually taken. See Getz v. Equitable Life Assurance Soc'y, 90 N.M. 195, 198, 561 P.2d 468, 472 (trial court will be reversed if its findings, which have been properly attacked, are not supported by substantial evidence), cert. denied, 434 U.S. 834, 98 S. Ct. 121, 54 L. Ed. 2d 95 (1977). We do not doubt the existence of dust along the tract road or that dust could have a deleterious effect on grazing. However, we are unable to discern evidence sufficient that a reasonable mind might accept as adequate to support the conclusion that a quarter-mile strip of land for the length of 9,240 feet has been effectively removed from pasturage due to the dust cast into the air from Yates' traffic on the easement tract road. See Cave v. Cave, 81 N.M. 797, 799, 474 P.2d 480, 482 (1970) (defining substantial evidence).\nOnly Collins gave testimony regarding the amount of dust coverage in terms of distance. However, his estimate was based purely on speculation as he admitted that he was not fully familiar with traffic patterns on the tract road. Kennedy stated that from his ranch house he could see dust rise like a curtain along the road and the dust would not settle quickly. Kennedy did not testify to any specific amounts of acreage affected by the dust. Furthermore, he acknowledged that at the time of the condemnation action the traffic causing the dust had \"slowed down to a considerable degree.\"\nThere is no evidence that easement traffic generated dust that covered 280 acres sufficiently to deter all grazing by livestock, that there was any overgrazing of remaining pastures, or as to the frequency and extent to which the affected pasturage was rehabilitated by rain. Without more, testimony as to blowing dust cannot reasonably substantiate a finding that the operation and weekly maintenance of a pipeline easement, which physically burdens 6.38 acres, injuriously affects an additional 273.62 acres to the point of rendering the additional acres valueless or diminishing their value in any reasonably specified amount.\nWhen the landowner fails to present substantial evidence to support a finding of a diminution in the fair market value of the remaining property as a result of a partial taking, as previously discussed, just compensation should equal the fair market value of the property actually taken. The trial court found that $165 per acre was the fair market value of the ranchland taken by Yates for its easement and this amount is supported by substantial evidence. Consequently, *1287 Kennedy should be awarded compensation equal to $165 multiplied by the number of acres condemned for the easement.\nThe judgment is reversed and the case remanded for the trial court to enter a judgment consistent with this opinion.\nIT IS SO ORDERED.\nSOSA, C.J., and SCARBOROUGH, J., concur.\n", "ocr": false, "opinion_id": 1258029 } ]
New Mexico Supreme Court
New Mexico Supreme Court
S
New Mexico, NM
2,659,837
Judge James E. Boasberg
2013-11-01
false
rowland-v-united-states-district-court
Rowland
Rowland v. United States District Court
null
null
Civil
null
null
null
null
null
null
null
null
null
0
Published
null
null
null
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2013cv1491-9", "author_id": 313, "opinion_text": " UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF COLUMBIA\n\n\n\nDAVONTA MELVIN ROWLAND,\n\n Plaintiff,\n v. Civil Action No. 13-1491 (JEB)\nUNITED STATES DISTRICT COURT,\n\n Defendant.\n\n\n MEMORANDUM OPINION\n\n Pro se Plaintiff Davonta Rowland brings this action against the “United States District\n\nCourt.” Although largely incomprehensible, the half-page Complaint appears to voice\n\ndissatisfaction with the decisions of U.S. District Judge Richard Leon, who dismissed two of\n\nPlaintiff’s pro se federal cases. See Rowland v. U.S. Dept. of Justice, No. 12-1851; Rowland v.\n\nNat’l Gallery of Art, No. 12-1430. He claims Judge Leon “ignored the constitution and is\n\nresponsible for abuse of process without due process.” Compl. at 1. His suit seeks $26 billion in\n\ndamages.\n\n The most basic reason why this suit may proceed no farther is the doctrine of judicial\n\nimmunity. “Few doctrines were more solidly established at common law than the immunity of\n\njudges from liability for damages for acts committed within their judicial jurisdiction.” Pierson\n\nv. Ray, 386 U.S. 547, 553-54 (1967). The purpose of the doctrine is to “protect judicial\n\nindependence by insulating judges from vexatious actions prosecuted by disgruntled litigants,”\n\nForrester v. White, 484 U.S. 219, 225 (1988) (citation omitted) – precisely the case here. As a\n\nresult, “judges of courts of superior or general jurisdiction are not liable to civil actions for their\n\njudicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been\n\n 1\n\fdone maliciously or corruptly.” Stump v. Sparkman, 435 U.S. 349, 356 (1978) (citation and\n\ninternal quotation omitted).\n\n The Complaint must thus be dismissed. An Order so ruling will issue this day.\n\n\n /s/ James E. Boasberg\n JAMES E. BOASBERG\n United States District Judge\nDate: November 1, 2013\n\n\n\n\n 2\n\f", "ocr": false, "opinion_id": 2659837 } ]
District of Columbia
District Court, District of Columbia
FD
USA, Federal
2,696,018
Travis
2009-12-09
false
white-v-ohio-state-univ-college-of-veterinary-medi
White
White v. Ohio State Univ. College of Veterinary Medicine
null
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "2009 Ohio 7034" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/13/2009/2009-ohio-7034.pdf", "author_id": null, "opinion_text": "[Cite as White v. Ohio State Univ. College of Veterinary Medicine, 2009-Ohio-7034.]\n\n Court of Claims of Ohio\n The Ohio Judicial Center\n 65 South Front Street, Third Floor\n Columbus, OH 43215\n 614.387.9800 or 1.800.824.8263\n www.cco.state.oh.us\n\n\n\n\nKENNETH M. WHITE, et al.\n\n Plaintiffs\n\n v.\n\nTHE OHIO STATE UNIVERSITY COLLEGE OF VETERINARY MEDICINE\n\n Defendant\n Case No. 2008-09813\n\nJudge Alan C. Travis\n\nDECISION\n\n\n\n {¶ 1} Plaintiffs brought this action for professional negligence against the Ohio\nState University College of Veterinary Medicine. The complaint was filed on September\n19, 2008. Defendant answered and admitted negligence. The parties differ on whether\nplaintiffs suffered any compensable damages as a result of the admitted negligence. A\ntrial on the issue of damages was held on November 9, 2009.\n {¶ 2} Plaintiffs are engaged in the business of breeding, raising, and racing\nhorses. Plaintiffs own a yearling horse named Ivan. On July 1, 2008, when Ivan was\nthree months old, plaintiffs brought the foal to The Ohio State University large animal\nfacility for surgical repair of a hernia. At the time, another horse was at the facility for\ngelding. Defendant’s veterinary staff confused the names of the owners and scheduled\nIvan for both hernia repair and gelding. The hernia was repaired and no claim is made\nregarding that procedure. Plaintiffs’ claim is based on the negligent sterilization of Ivan.\n\f {¶ 3} The parties are in substantial agreement on the basic facts, but differ in\ntheir interpretation of those facts. Plaintiff Kenneth White1 has been engaged in buying,\nselling, and training quarter horses since 1983. White identified Plaintiffs’ Exhibits A\nthrough XX, as a series of documents that trace Ivan’s pedigree and the racing records\nof other horses in his lineage. White testified that he and his wife chose to cross-breed\ntwo horses they owned in the hope that they would produce a “superstar” stallion for\nbreeding purposes. The sire was Ivar, a thoroughbred. The dam was Paquita Fast Girl,\na quarter-horse. Ivan, born in the spring of 2008, was the result.\n {¶ 4} White testified that both Ivar and Paquita Fast Girl were sprint horses, a\nquality he felt would enable him to produce a fast race horse. White intended to race\nIvan and then, at some time in the future, make Ivan available for breeding. White felt\nconfident that but for the negligence of defendant, Ivan would have stood at stud 15 to\n20 times a year at a fee of at least $750. White testified that it is not unusual for a horse\nto procreate into its early twenties.\n {¶ 5} White concedes that there is no guarantee of success in the horse\nbusiness. While he feels that Ivan would have developed and been available for\nbreeding in the normal course, he agrees that there is no evidence that Ivan would have\nbeen fertile at maturity or would have produced any offspring.\n {¶ 6} White accepts the fact that the general market value of Ivan is the same\nwhether the horse were a stallion or a gelding. White believes that Ivan is worth\napproximately $7,500 on the open market. White also agrees that whether a stallion or\ngelding, Ivan remains eligible to run in the same races. Therefore, there is no loss of\nIvan’s general market value as a result of the negligence of defendant. However,\nplaintiffs contend that the true measure of damages is the loss of Ivan’s ability to stand\nat stud and collect breeding fees over his lifetime.\n {¶ 7} According to White, the true value of a horse is based primarily upon\nbloodlines rather than the record of winnings that the horse may earn during a racing\ncareer. In his opinion, Ivan comes from a long line of well-credentialed horses and\nIvan’s pedigree should enhance his worth above the normal market value. Plaintiffs\ncalled no other witnesses on the issue of damages.\n\n1\nReferences to “plaintiff” or “White” throughout this decision are to plaintiff Kenneth White.\n\f {¶ 8} Defendant called Phillip Victor Clark who testified on the valuation and\nappraisal of race horses. Clark is a certified public accountant. Clark estimated that 50\npercent of his accounting clients are in the business of breeding, raising, showing, and\nracing horses. Clark is a member of the American Quarter Horse Association and has\nbeen a board member of the Ohio Quarter Horse Association since 1982. Clark has\nextensive experience announcing horse sales throughout the country and has studied\nequine pedigrees for decades. Clark has been asked to provide his opinion on the\nvaluation of horses by clients and others in the horse business on a regular basis. He\nhas testified as an expert on the subject in various courts. The court finds that Clark is\nqualified to express an opinion on the value of plaintiff’s gelding, Ivan.\n {¶ 9} Unlike White, Clark holds the opinion that the value of a horse that has\nbeen bred for racing is primarily influenced by its success in racing. Clark offered\nexamples of horses that were promising based upon their blood lines, but were\nineffective in their racing career and lost value as a result.2 Without success in racing,\na horse cannot command a significant stud fee and has no enhanced value beyond that\nwhich the market will bear.\n {¶ 10} Clark reviewed Ivan’s pedigree. The sire, Ivar, has an excellent pedigree.\nAs a yearling in 1999, Ivar was purchased for $105,000. He sold a year later as a two-\nyear old for $226,000. Thereafter, his value diminished significantly. Ivar was raced 36\ntimes from the time he was a two-year old in 2000 until he was retired as an eight-year\nold in 2006. Despite his early promise and the relatively high initial purchase price,\nbased presumably upon his pedigree, Ivar was unsuccessful in racing. He won only\nonce, with four second-place and three third-place finishes. His lifetime winnings\ntotaled $22,550.\n {¶ 11} Clark found it significant that during Ivar’s racing career, the horse was\nentered in a series of claiming races. In a claiming race, any owner or trainer has the\nright to claim or purchase an entered horse at the claiming price for that race. Several\n\n\n2\n As an example, Clark reviewed the history of “Pulpit,” a successful winner at the race track. Pulpit’s\npedigree included a series of successful race horses. As a result of his racing success, Pulpit\ncommanded an $80,000 stud fee. A breeder paid the fee and Pulpit produced “Stormbreeze.”\nStormbreeze came from the same lineage as Pulpit, but unlike his sire, Stormbreeze was unsuccessful in\nracing. Eventually, Stormbreeze was sold for $1,200. Clark stated the greatly diminished value of\nStormbreeze, a well-bred, but unsuccessful race horse, was the norm.\n\fof the claiming races in which Ivar was entered were for as little as $3,500.\n(Defendant’s Exhibit 11.) Clark testified that if a horse were a good quality stallion, it\nwould not be entered in a $3,500 claiming race. Moreover, if a stallion had potential\nvalue for breeding, it would be rare that an owner would continue to enter the horse in\nraces for as long as had been done in Ivar’s case. Based upon his review of the\nevidence, Clark was of the opinion that when Ivar was retired from racing in 2006, the\nhorse had almost no commercial value as a thoroughbred.\n {¶ 12} Clark also reviewed Ivan’s dam, the quarter horse Paquita Fast Girl. He\nnoted that Paquita Fast Girl came from some of the best racing stallions in the industry.\nHowever, Paquita Fast Girl had a speed rating of only 71, well under the minimum\nrating of 80 necessary to qualify for the quarter horse “Register of Merit.” Paquita Fast\nGirl earned only $696 in her career.3 Ivan’s second dam, Antique Silk, did have a\nRegister of Merit speed rating, but won only one race and produced insignificant\nearnings of only $657.4\n {¶ 13} Based upon his knowledge and experience as an owner, breeder, buyer\nand seller of racing horses, along with Ivan’s pedigree and the racing history of various\nhorses in Ivan’s lineage, Clark concluded that Ivan was a below-average foal with a\nweak pedigree. Whether as a stallion or gelding, Ivan remains eligible for the same\nraces. Therefore, Ivan’s value as a race horse remained the same whether gelded or\nnot. Clark felt Ivan had a market value of between two and three thousand dollars. If\nIvan turned out to be a superior or outstanding horse, the estimated value might be\ntwice that much. Clark stated that it was impossible to estimate future earnings that\nmight have been realized from breeding Ivan.5\n {¶ 14} As a general rule, where a plaintiff claims that personal property was\ndamaged by the negligence of another, damages are limited to the difference between\nthe fair market value of the property before and immediately after the loss. Falter v. City\nof Toledo (1959), 169 Ohio St. 238; Oberschlake v. Veterinary Associates Animal\n\n\n\n\n White feels that the lack of racing success was because Paquita Fast Girl had been raced while\nlame by a former owner and was unable to perform at the track.\n The mare that produces a foal is designated first dam. The next older generation is designated\nsecond dam and so forth.\n\fHospital, et al. (2003), 151 Ohio App.3d 741, 2003-Ohio-917, ¶9, citing Akro-Plastics v.\nDrake Industries (1996), 115 Ohio App.3d 221, 226. The market value rule is not\nabsolute.\n {¶ 15} “Market value is the standard which the courts insist on as a measure of\ndirect property loss, where it is available, but that is a standard, not a shackle. When\nmarket value cannot be feasibly obtained, a more elastic standard is resorted to,\nsometimes called the standard of value to the owner. This doctrine is a recognition that\nproperty may have value to the owner in exceptional circumstances which is the basis\nof a better standard than what the article would bring on the open market.” Bishop v.\nEast Ohio Gas Co. (1944), 143 Ohio St. 541, 546. An owner of personal property may\nhave sufficient knowledge of the value of personal property to testify to its value\nbecause of its peculiar worth to the owner. The opinion of an owner is not conclusive,\nbut is simply some evidence of the value of the property. Id. However, mere\nspeculation is insufficient to prove loss or damage to personal property. Shimola v.\nNationwide Insurance Co. (1986), 25 Ohio St.3d 84, 87.\n {¶ 16} Plaintiffs argue that there are unusual circumstances present in this case\nand the general rule that requires testimony as to market value should not be applied.\nPlaintiffs seek support in McDonald v. Ohio State Veterinary Hosp. (1994), 67 Ohio\nMisc.2d 40. In McDonald, a dog was paralyzed as a result of the professional\nnegligence of the veterinarian. The court recognized that market value is the standard\nin the valuation of personal property loss, but based on Bishop v. East Ohio Gas Co.,\nsupra, found there were exceptional circumstances and awarded damages based upon\nthe unique value of the animal to the owner. The dog had undergone several years of\nrigorous and highly specialized training at significant expense to the owner and a similar\ndog was not available on the open market. In essence, there was no market value for\nthe damaged personal property in McDonald.\n {¶ 17} In contrast to both the Bishop and McDonald cases, there are no\nexceptional circumstances present here that would warrant a departure from the market\nvalue rule. Although White hoped his cross-breeding experiment would produce a\n\n\n This is consistent with the written opinion of Steve Branstetter, a horse breeder consulted by\nplaintiff. Branstetter felt it was “impossible to put a price” on the loss of breeding income, but the potential\nwould be in the thousands of dollars. (Defendant’s Exhibit 16.)\n\fsuperior horse, there is no evidence that Ivan is unique or that the circumstances of this\ncase are unusual. See Oberschlake, supra, at ¶10. In White’s opinion, Ivan came from\na good pedigree. In contrast, Clark opined that Ivan was a below average foal with a\nweak pedigree. Although the parties differ on the specific value of Ivan, market value is\nreadily ascertainable from the testimony and documentary evidence presented. There\nis nothing to distinguish this case from any other case involving damage to personal\nproperty. Moreover, both plaintiffs and defendant agree that the fair market value of\nIvan would be the same whether considered as a stallion or a gelding. Therefore, under\nthe general rule of damage to personal property, the value of Ivan was not diminished\nby the negligent gelding of the horse and plaintiffs have suffered no damage.\n {¶ 18} Even if this case were based on exceptional circumstances and the\nnormal measure of damages were not applicable, plaintiffs have not met their burden of\nproof of future damages. A court may not award future damages except on proof that\nthose damages are reasonably certain to exist. The term reasonably certain means\nprobable; that is, more likely to occur than not. Hammerschmidt v. Mignogna (1996),\n115 Ohio App.3d 276, 281-282, see also Ohio Jury Instructions, Section 315.01. White\nconcedes that he has no evidence that Ivan would be fertile at maturity or that he would\nbe successful in producing offspring. Estimates of Ivan’s future earnings are\nspeculative. Plaintiffs have not proven that it is reasonably certain that they will suffer\ndamages in the future as a result of Ivan’s inability to perform at stud. Accordingly,\njudgment shall be rendered in favor of defendant.\n\n\n\n\n Court of Claims of Ohio\n The Ohio Judicial Center\n 65 South Front Street, Third Floor\n Columbus, OH 43215\n 614.387.9800 or 1.800.824.8263\n www.cco.state.oh.us\n\n\n\n\nKENNETH M. WHITE, et al.\n\n Plaintiffs\n\f v.\n\nTHE OHIO STATE UNIVERSITY COLLEGE OF VETERINARY MEDICINE\n\n Defendant\n Case No. 2008-09813\n\nJudge Alan C. Travis\n\nJUDGMENT ENTRY\n\n\n\n This case was tried to the court on the issues of liability and damages. The court\nhas considered the evidence and, for the reasons set forth in the decision filed\nconcurrently herewith, judgment is rendered in favor of defendant. Court costs are\nassessed against plaintiffs. The clerk shall serve upon all parties notice of this\njudgment and its date of entry upon the journal.\n\n\n\n\n _____________________________________\n ALAN C. TRAVIS\n Judge\n\ncc:\n\n\nDaniel L. Bennett Jeffrey L. Maloon\nWilliam T. Goslee Karl W. Schedler\n114 South Main Street Assistant Attorneys General\nP.O. Box 416 150 East Gay Street, 18th Floor\nBellefontaine, Ohio 43311-0416 Columbus, Ohio 43215-3130\n\nACT/cmd\nFiled December 9, 2009\nTo S.C. reporter December 29, 2009\n\f", "ocr": false, "opinion_id": 2696018 } ]
Ohio Court of Claims
Ohio Court of Claims
SS
Ohio, OH
695,011
null
1995-05-02
false
anthony-ray-jenkins-v-bill-mcbride-warden-attorney-general-of-kansas
null
null
Anthony Ray Jenkins v. Bill McBride Warden Attorney General of Kansas, Anthony Ray Jenkins v. Brad Ambroser, Anthony Ray Jenkins v. Bill McBride Sheriff, Anthony Ray Jenkins v. Jean K. Gilles Phillips, Lawyer for the Appellate Defender, Anthony Ray Jenkins v. Daniel H. Diepenbrock, Anthony Ray Jenkins v. Dana Stuart and Sera Henson
null
null
null
null
null
null
null
null
null
null
null
0
Published
null
null
[ "53 F.3d 342" ]
[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/53/53.F3d.342.-3130.94-3232-.94-3234-.94-.94-3225-.html", "author_id": null, "opinion_text": "53 F.3d 342NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.\n Anthony Ray JENKINS, Petitioner-Appellant,v.Bill MCBRIDE, Warden; Attorney General of Kansas,Respondents-Appellees.Anthony Ray JENKINS, Plaintiff-Appellant,v.Brad AMBROSER, Defendant-Appellee.Anthony Ray JENKINS, Plaintiff-Appellant,v.Bill MCBRIDE, Sheriff, Defendant-Appellee.Anthony Ray JENKINS, Plaintiff-Appellant,v.Jean K. Gilles PHILLIPS, lawyer for the Appellate Defender,Defendant-Appellee.Anthony Ray JENKINS, Plaintiff-Appellant,v.Daniel H. DIEPENBROCK, Defendant-Appellee.Anthony Ray JENKINS, Plaintiff-Appellant,v.Dana STUART and Sera Henson, Defendants-Appellees.\n Nos. 94-3195, 94-3197, 94-3198, 94-3199, 94-3248, 94-3260.\n (D.C. No. 94-3098-DES)\n D.C. No. 94-3225-DES\n D.C. No. 94-3232-DES\n D.C. No. 94-3234-DES\n D.C. No. 94-3226-DES\n D.C. No. 94-CV-3130\n United States Court of Appeals, Tenth Circuit.\n May 2, 1995.\n \n Before SEYMOUR, Chief Judge, MCKAY, and HENRY, Circuit Judges.\n \n ORDER AND JUDGMENT1\n \n 1\n After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.\n \n \n 2\n Anthony Ray Jenkins, a prisoner in the Kansas prison system, appeals the dismissal of six cases he filed against various parties in federal court. He also requests leave to proceed in forma pauperis in each case. We deny such leave and affirm the district court in each instance.\n \n \n 3\n Mr. Jenkins filed individual actions under 42 U.S.C.1983 against three attorneys who represented him at various stages of his state criminal proceedings. He claims that Daniel Diepenbrock, his court-appointed attorney, advised him to withdraw an appeal without prejudice and violated his privacy. He alleges that Public Defender Jean K. Gilles Phillips failed to prepare an adequate appellate brief for his state direct appeal. Mr. Jenkins also expresses dissatisfaction with the performance of Brad Ambroser, a private attorney he retained to represent him in a state criminal action. The district court dismissed all three cases pursuant to 28 U.S.C.1915(d).\n \n \n 4\n Sua sponte dismissal under section 1915(d) is appropriate where the claim is based on an inarguable legal theory. Hall v. Bellmon, 935 F.2d 1106, 1108-09 (10th Cir.1991). To prevail in federal court under section 1983, plaintiff must show the deprivation of a federally protected right by an individual acting under color of state law. Hill v. Ibarra, 954 F.2d 1516, 1520 (10th Cir.1992). Public defenders, private attorneys, and court-appointed attorneys are not state actors for section 1983 purposes. See generally Polk County v. Dodson, 454 U.S. 312, 319-24 (1981). Mr. Jenkins has therefore failed to present arguable claims under section 1983, and the district court properly dismissed these three claims under section 1915(d).\n \n \n 5\n Mr. Jenkins also filed a section 1983 action against attorneys in the Child Support Enforcement Division of the Kansas Department of Social and Rehabilitation Services. He alleges that they improperly sought to obtain child support payments from him for a child he denies fathering. Concluding that Mr. Jenkins' allegations of due process violations were conclusory, the district court dismissed this claim pursuant to section 1915(d). We agree that his claims of factual inaccuracy in the state court proceedings do not rise to the level of constitutional violations. Dismissal was thus proper.\n \n \n 6\n In his fifth section 1983 claim, Mr. Jenkins sought only injunctive relief against Seward County Sheriff Bill McBride. He alleged that Sheriff McBride denied him access to legal materials and proper medical care during his confinement in the Seward County Jail. The district court held that his claim was moot because he was no longer incarcerated in the jail. We agree. Mr. Jenkins is currently incarcerated in the Topeka Correctional Facility and it is unlikely that he will be sent back to the Seward County Jail during his current sentence. Because he is no longer subject to the conditions he alleges exist at the jail, Mr. Jenkins' claim for injunctive relief is moot and was properly dismissed pursuant to section 1915(d).\n \n \n 7\n Finally, Mr. Jenkins has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The district court dismissed the petition for failure to exhaust state remedies. Noting that Mr. Jenkins failed to file a timely notice of appeal, the court held that it lacked jurisdiction to grant him leave to proceed in forma pauperis on appeal or to issue a certificate of probable cause.\n \n \n 8\n The district court dismissed Mr. Jenkins' habeas petition on March 28, 1994. Mr. Jenkins filed his notice of appeal on June 17, 1994. A notice of appeal must be filed with the clerk of the district court within thirty days of the entry of the judgment or order appealed. Fed. R.App. P. 4(a). Therefore, we do not have jurisdiction to review the dismissal of Mr. Jenkins' habeas petition.\n \n \n 9\n Because we find Mr. Jenkins' appeals frivolous, we deny him in forma pauperis status and decline to grant his request for a certificate of probable cause on the habeas petition. Consequently, we dismiss these appeals.\n \n \n \n 1\n This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470\n \n \n ", "ocr": false, "opinion_id": 695011 } ]
Tenth Circuit
Court of Appeals for the Tenth Circuit
F
USA, Federal